In what appears to be the first use of a new Florida law that criminalizes the promotion of gangs on the Internet, the Lee County Sheriff’s Office arrested 15 men over the contents of their MySpace pages, which prosecutors claim advertised and promoted gang membership.
The statute, Fla. Stat. 874.11, was adopted on June 30, 2008 as part of the "Criminal Gang Prevention Act," and became effective October 1, 2008. The statute provides:
874.11 Electronic communication.--Any person who, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, uses electronic communication to intimidate or harass other persons, or to advertise his or her presence in the community, including, but not limited to, such activities as distributing, selling, transmitting, or posting on the Internet any audio, video, or still image of criminal activity, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Violators face a maximum of five years in prison. Six weeks after the law took effect, The Lee County Sheriff’s Office announced that its "Operation Firewall" initiative under the new law had resulted in the arrest of 14 individuals, with the arrest of a 15th later that day.
The suspects ranged in age from 14 to 58 years old, and from those with long criminal records to those with no previous arrests. Prosecutors contended that many of them had displayed their gang membership and criminal intentions on MySpace and other web sites. Examples cited by prosecutors included a 15-year-old's "hit list" of "people I wanna kill," and a 14-year-old's posted pictures of himself dressed in gang colors and displaying gang hand signals.
On Tuesday morning, August 4, Florida District Court Judge Ramiro Mañalich heard arguments from attorneys from two of the defendants, Richard Omar Figueroa-Santiago and Elvis Eladio Rodriguez, both contending that the statute is unconstitutional.
Judge Ramiro Mañalich reserved decision on the question.
But it is clear that the statute raises serious First Amendment questions. Forty years ago, the U.S. Supreme Court has held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). States may also prohibit "true threats," Watts v. United States, 394 U.S. 705, 708 (1969), but this category is defined narrowly as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359 (2003).
In Chicago v. Morales, 527 U.S. 41 (1999), the Supreme Court struck down an Illinois statute which prohibited "criminal street gang members" from loitering in public places. And while the Supreme Court majority did not focus on it, the statute also prohibited the wearing or displaying of gang colors and insignia — which was the basis the Illinois Court of Appeals invoked for striking down the statute before the Morales case reached the U.S. Supreme Court. See City of Harvard v. Gault, 660 N.E. 2d 259 (Ill. App. 1996).
While gangs and gang activity are serious problems, the Florida statute and the prosecutions under it are also problematic. Does displaying gang colors and symbols rise to the level of a credible threat of violence or solicitation to imminent criminal activity? Is an online "hit list" meant to be taken seriously? And what are the implications of this type of prosecution for free speech, both online and off?
We are likely to have a decision from Judge Mañalich soon. Whichever way he rules, questions about the limits of online speech are not going to disappear. This is certainly a case worth keeping an eye on — you can monitor developments through the Citizen Media Law Project database entry, Florida v. Figueroa-Santiago.