Supreme Court won't consider whether gang advice is free speech

By The Associated Press

10.22.02

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WASHINGTON — The Supreme Court yesterday refused to take a case involving a man who gave advice to members of an Arizona street gang.

The justices let stand rulings by two lower courts that overturned the 15-year sentence of Jerry Dean McCoy, a former California gang member who moved to Tucson and provided advice to his girlfriend's son and other members of a street gang called "Bratz." His suggestions ranged from how to elect officers so they could formalize their group to collecting money for a bail fund to how to initiate members joining or leaving the group.

An Arizona jury convicted McCoy in 1996 under a state law that prohibits providing advice to criminals or encouraging criminal activity. He was sentenced to 15 years in prison.

McCoy argued that his conviction was a violation of his First Amendment free-speech rights. His appeal was denied by an Arizona court but a federal district court overturned his conviction. In February, a three-judge panel of the 9th U.S. Circuit Court of Appeals then affirmed McCoy's release.

Both federal courts agreed that the First Amendment protected McCoy's conversations with Bratz members. The 9th Circuit found the conversations were a "mere abstract advocacy" and did not pose imminent danger.

U.S. Supreme Court Justice John Paul Stevens, in his comment on the case, said he found that argument debatable because of the nature of the advice McCoy provided. "[A]s our cases have long identified, the First Amendment does not prevent restrictions on speech that have 'clear support in public danger,'" Stevens wrote.

"Long range planning of criminal enterprises — which may include oral advice, training exercises and perhaps the preparation of written materials — involves speech that should not be glibly characterized as mere 'advocacy' and certainly may create significant public danger," he wrote. "Our cases have not yet considered whether, and if so what extent, the First Amendment protects such instructional speech."

Stevens added that the high court's refusal to hear Terry L. Stewart vs. Jerry Dean McCoy should not be taken as an endorsement of the lower federal courts' reasoning.

Previous

State can't prosecute man for giving advice to gang members
Federal appeals panel finds conviction of Jerry Dean McCoy for his speech 'strays dangerously close to a finding of guilt by association.'  02.28.02

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