An Arizona law that enhances the punishment for the criminal offense of threatening or intimidating if a person is in a criminal street gang does not violate the First Amendment, an Arizona appeals court has ruled.
The court emphasized that the conduct of threatening or intimidating is not protected speech and, thus, any First Amendment challenge must fail.
Arthur Ray Meeds was charged and convicted of stalking and threatening or intimidating. Meeds sent a series of threatening text messages to his girlfriend. Prosecutors increased his punishment for threatening or intimidating under a state law that provided:
Threatening or intimidating . . . is a class 1 misdemeanor, except that it is a class 6 felony if:
(1) The offense is committed in retaliation for a victim’s either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
(2) The person is a criminal street gang member.
Prosecutors alleged that Meeds should be punished more severely for the threatening offense because he was a member of the Lindo Park Crips and, thus, fell within the statutory language of “criminal street gang member.” Meeds denied that he was a member of the gang.
Meeds argued the law was both too vague, too broad, and violated his First Amendment right to freedom of association. The Arizona appeals court ruled in favor of the government and against Meed in its May 3, 2018, ruling in State v. Meeds.
The court rejected the vagueness argument, noting that prior court decisions had upheld the statute as constitutional and clear. The appeals court pointed out that Arizona law defined “criminal street gang.” Similarly, the appeals court also rejected the argument that the law was unconstitutionally overbroad.
To be overbroad, a statute must restrict protected speech substantially. Instead, the appeals court wrote that “the conduct of threatening or intimidating [in the statutory language], the core offense with which Meeds is charged, is not protected by the First Amendment.”
Finally, the appeals court also rejected the freedom of association claim. There are two types of freedom of association: (1) the right to intimate association defined as the right to enter into close, intimate human relationships; and (2) the right to expressive association defined as the right to associate with others in pursuit of political, religious, or other ends.
“The record fails to show that the Lindo Park Crips engaged in any expressive activity the First Amendment protects, and Meeds does not explain why its activity should enjoy First Amendment protection,” the appeals court wrote. “The record instead reflects that the goal of the Lindo Park Crips is to instill fear in the community and to commit criminal acts to get what they want.”
The court concluded that the state had a “compelling state interest unrelated to the suppression of ideas: to protect the public from threats and intimidation by members of criminal street gangs, who presumably have a much greater ability than non-gang members to make good on those threats.”
David L. Hudson, Jr. is a First Amendment scholar and the author of Documents Decoded: Freedom of Speech (ABC-CLIO, 2017) and First Amendment: Freedom of Speech (Thomson Reuters, 2012).