Fault Lines
10 December 2017

Fucking First Amendment Standing, How Does It Work?

Sept. 23, 2015 (Mimesis Law) — Do you have any recourse if the government mislabels you as dangerous?

This is not an idle question. We live in an age of labels, and those labels carry real consequences, not just rhetorical ones. The government can slap a no-fly label on you and dramatically restrict your movements, requiring protracted and uncertain litigation.  The government can slap a “sex offender” label on you and destroy your life, even if your offense was sexting or being a 19-year-old who had sex with someone he thought was 17.

Those are individual labels and clearly implicate your individual rights. But what can you do if the government slaps an impairing label onto a group to which you belong? How can you fight that?

This is not an idle question either. Particularly since 9/11, governments are eager to label groups as terrorists or criminal gangs or extremists. Your group’s presence on that list may be based on evidence, or it may be based on politics. The Iranian group Mujahedeen Khalq, which the State Department designated as a foreign terrorist organization, got off the list by amassing enough lobbying influence to get de-listed.  Protest groups tend to get on surveillance lists of dangerous potential threats based on the political power of the people they are protesting.  Getting a group off such a list if you don’t have political power is tricky.

This brings us to an unlikely group of protagonists, the Juggalos. Juggalos are ardent, vocal fans of the group Insane Clown Posse. Whilst socializing some of them occasionally misbehave, as you would expect of devotees of a group that has “insane” and “clown” in its name. But in 2011, the National Gang Intelligence Center, which is supervised by the FBI, labeled Juggalos at large – not just individual offenders with a record of bad behavior — as a “hybrid gang.” A group of Juggalos sued, and last week the United States Court of Appeals said that they did, in fact, have standing to challenge being labeled as a gang.

The Plaintiff-Juggalos, as the Sixth Circuit deliciously calls them, lost in the trial court in a manner that illustrates the difficulty of fighting government-imposed labels. Mark Parsons, the lead Juggalo, described being detained by a State Trooper and searched and questioned because he had a Juggalo sticker on his truck. Brandon Bradley, the next Juggalo, said he had been detained multiple times in California for wearing Juggalo memorabilia and tattoos by officers who labeled them “gang-related.” Scott Gandy has Juggalo tattoos and is concerned that he will not be able to enlist in the U.S. Army because of the gang designation.

The District Court agreed with the government’s assertion that this band of Juggalos lacked standing to sue. Standing, the court found, requires (1) injury in fact, (2) causation, and (3) redressability. Put another way, you can’t sue the government over labeling you unless you are actually injured, the labeling causes the injury, and there is a remedy at law.

The District Court held that the Juggalos couldn’t show causation because their injuries were inflicted by third parties reacting to the Juggalo label, not by the government. That’s the point, the Juggalos said: when an official law enforcement arm of the federal government labels you a member of a gang, the natural and probable consequence is that state and local law enforcement will treat you like a gang member.

Fortunately the Sixth Circuit rejected the government’s attempt to parse causation. For the purposes of a motion to dismiss, which takes allegations as true, it was enough for the Juggalos to assert that the state and local law enforcement was motivated directly by the federal government’s label. The court also rejected the government’s shrugging approach to redressability. The Juggalo is out of the barn, the government argued: even if you order us to de-list them as a gang, state agencies may still treat them like a gang. But Sixth Circuit believed that the perfect cannot be the enemy of the good, or of the Juggalo: it is enough that the Juggalos may enjoy some relief from harassment if the court enjoins the FBI from slapping the gang label on music it doesn’t like.

Finally, the Sixth Circuit also recognized a crucial First Amendment injury beyond the indignity and delay of traffic stops and interrogations. The Court recognized a reputational injury that chilled speech. Perhaps it is odd to think about harm to the reputation of a group known for frequent repetition of the phrase “tripping balls.”

But here, the Sixth Circuit said, harm to the Juggalos’ reputation was stark and backed by specifics: being known as Juggalos was getting them stopped, detained, and interrogated, and that in turn was chilling the exercise of their First Amendment right to follow Insane Clown Posse and celebrate its charms. “Stigmatization also constitutes an injury in fact for standing purposes,” the Court said. So: the Plaintiff-Juggalos will get a chance to prove that the government harmed them by wrongfully labeling their group a gang.

This is an amusing circumstance to us, but likely not to the American citizens who were stopped, frisked, questioned, detained, and searched because they wore the fan regalia of a music group they like. Parsons v. United States Department of Justice stands for the encouraging proposition that there may be a remedy when government actors subjectively and capriciously label entire groups of Americans as criminals based on the actions of a few. Meretricious labeling of citizens is part of law enforcement culture: they will continue to do it unless held to account.

Ken White is a civil and criminal litigator at Brown White & Osborn LLP in Los Angeles. He blogs about law at Popehat.com.

Main image via Trappedbehindthelens

7 Comments on this post.

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  • A Hotlinking of Juggalos | Popehat
    23 September 2015 at 10:08 am - Reply

    […] Scott Greenfield asked me to write a post for the great new group criminal justice blog Fault Lines, so I did, here. […]

  • Dave
    23 September 2015 at 10:25 am - Reply

    “Scott Gandy has Juggalo tattoos… ”

    My sympathy stops here.

  • asdf
    23 September 2015 at 11:07 am - Reply

    `the ironic thing is that they are basically just a weirdo Christian cult.

  • Nicolas Martin
    23 September 2015 at 11:10 am - Reply

    In the animal kingdom, the rule is, eat or be eaten; in the human kingdom, define or be defined. — Thomas Szasz

  • Scott Jacobs
    23 September 2015 at 1:49 pm - Reply

    SO many great lines…

  • David Schwartz
    2 October 2015 at 7:13 am - Reply

    Darn. I was going to sell acid with instructions that read “get as much in your eyes as possible” and then argue that when people got blinded, it was not because of my directions but because people followed them. Sadly, while this may fool a mere District Court, higher level courts are wiser.

  • Rebel Yells to Prison Cells
    27 October 2015 at 9:19 am - Reply

    […] And that’s in agreement with a number of decisions around the country. See, the law isn’t void for vagueness because members of criminal street gangs know in advance whether a prosecutor will think they’re in a street gang. The trick is, just be from an unpopular group. […]