Mayor Vows To Go Into Stores To Seize T-Shirts:



The Boston Herald reports:

Mayor Thomas M. Menino is cracking down on the Hub’s hard-core hoodlums and even the taunting “Stop Snitchin’ ” T-shirts they wear . . . .

Menino vowed to combat the soaring crime rate. Among the steps: Sending city Inspectional Services Division officials to seize T-shirts emblazoned with the “Stop Snitchin’ ” message.

“It’s wrong,” Menino said. “We are going into every retail store that sells the shirts and remove them.”

The Herald reported the shirts were worn by the mother of a reputed gang member earlier this year during his trial for a shooting that killed 10-year-old Trina Persad.

The mayor did not say what legal authority ISD would cite in seizing the shirts from retailers. . . .

The T-shirts -- which sometimes bear a logo with an octagonal stop sign riddled with bullets -- have surfaced in Boston and cities across the nation including Baltimore and Pittsburg. Officials say the shirts are intended to intimidate witnesses to crime. Store owners say the shirts are a harmless novelty. . . .

Under certain circumstances, wearing a "Stop Snitchin" T-shirt may be intended to threaten certain people with violence, and may be likely to convey such a message; such action may properly be punished (given a properly worded statute), given the threat exception to the First Amendment. Also, court authorities may bar such shirts from being worn in courtrooms, which are not public fora, and which the government as landlord may impose substantial speech restrictions.

But the government may not ban the sale of such T-shirts -- which can of course be used to send nonthreatening (even if repugnant) messages, such as messages of solidarity with thugs, messages that thug culture is cool, or messages that reporting crimes to the police is wrong -- just because of the possibility that the T-shirts may be used to send unprotected threats. And the government certainly may not just seize the shirts without some such legal ban in place (as the ACLU points out, such a seizure would violate the Fourth Amendment and the Due Process Clause as well as the First Amendment). Just as cross-burning is constitutionally protected, unless it's done with the intent to intimidate (and seems likely to achieve this result), so is the sale and wearing of the T-shirts.

Thanks to reader Rich Carreiro for the pointer.

Related Posts (on one page):

  1. The Reverse Mussolini Fallacy, Again:
  2. Mayor Vows To Go Into Stores To Seize T-Shirts:
Buck Turgidson (mail):
Boston was one of the first, if not THE first, city to adopt the language suggested by privately produced DHS guides: "If you see something, say something." Apparently the comparison to Maoist China or Stalinist Russia does not worry these people. Reporting crimes is one thing. Reporting suspicions is quite another. When I saw the T-shirt, I first thought that it was the response to that particular message. Some Boston neighborhoods (mostly white ethnic) have been known for generations for their code of silence (think, Charlestown). This has been broken in the last two decades. The trouble is, the anti-snitch sentiment arises in two situation--1) presence of particularly controlling, brutal, organized criminals that share a common bond (usually ethnic) with the local population (e.g., Chinese or Russian mob), or 2) a reaction to adverse, excessive police presence. I'll let you figure out which one is more likely to be the issue in Boston.
12.2.2005 6:47pm
The Original TS (mail):
The mayor did not say what legal authority ISD would cite in seizing the shirts from retailers.

Well, I suppose there's always the Fifth Amendment. . . . Could get expensive, though!
12.2.2005 7:12pm
Donald (www):
Boston journalists should learn how to spell "Pittsburgh." (This assumes, of course, that the article was referring to published reports, e.g., http://www.post-gazette.com/pg/05291/590424.stm, of the shirts' presence in Pittsburgh, Pennsylvania. They might have also turned up in Pittsburg, Kansas, but that seems doubtful.)

And based on people wearing the shirts to criminal trials, perhaps the mayor will argue that the shirts only purpose is the commission of a crime (intimidating a witness or maybe OOB).
12.2.2005 8:45pm
Hank:
Blatant violations of the First Amendment like this, and like teachers forcing kids to say the Pledge of Allegiance, ought to be made criminal. Having to cease the violations after the ACLU sues is not a sufficient deterrent or punishment.
12.2.2005 8:51pm
arbitraryaardvark (mail) (www):
Hank, TITLE 18 > PART I > CHAPTER 13 > § 241
§ 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same...
They shall be fined under this title or imprisoned not more than ten years, or both; [context omitted], or may be sentenced to death.


Actually getting this enforced is another matter. But it can be used as a way of calling attention to the seriousness of the offical conduct you are complaining about.
12.2.2005 9:27pm
Splunge (mail):
Eh, the important point here is political, not legal. Menino is almost certainly making dramatic empty gestures to distract public attention from some significant broad failure about which he hasn't a clue -- perhaps the high crime rate mentioned.

It'd be self-defeating for the citizenry of Boston to get sucked into a noisy debate about this gesture. Because, win or lose, such behaviour would perfectly serve the mayor's purpose in distracting people from the real problem.

I'd say it's a good rule of thumb, whenever a politician makes a bold and controversial (not to mention pointless) gesture like this to ask yourself the very same question you'd ask watching a stage magician makes some dramatic hand gesture: from what is he trying to draw my attention? Pay attention to the man behind the curtain!
12.2.2005 10:04pm
Buck Turgidson (mail):
Splunge,
Nice try. But Menino just got reelected and this is one of the first things that he got involved in after the elections. It makes no sense if it were political. Mayor Mumbles has always had dictatorial tendencies, although, unlike Giuliani, he does not admire Mussolini.

If anything, it's a safe move by Menino, because he will not be tested in elections for awhile. If he's making any point at all, it is one of personal power.
12.3.2005 2:17am
Splunge (mail):
What, you think his political career is over now? You think he thinks so? Ha ha. Politicians play politics until you nail the coffin lid down. And you'd better use 16d nails at that.
12.3.2005 4:32am
crowne:
"or if you think the punishment is likely to be grossly disproportionate to the crime." -gene's next post.

I think of drug laws as a freedom-lover myself. Dont forget what "war" causes these things.
12.3.2005 5:47am
Abdul (mail):
I'm all for freedom, but these shirts and the culture behind them make it tough to prosecute crimes in Philadelphia anymore (article requires registration). Of course banning the shirts, or seizing them, is likely to increase the "us vs them" mentality that keeps people in high crime areas protecting their victimizers from the police.
12.3.2005 7:45am
civj (mail):
The links at the bottom of the Herald story are interesting. This one notes that the police commissioner was conspicuous by her absence at the mayor's T-shirt press conference. She's been getting disenchanted with her job, and City Hall has not addressed that the police department is understrength.

This one mentions some of the mayor's plans to deal with the situation.
“Right now I am concentrating on the youth. They look inside themselves and see no hope. What they see is violence,” Menino said.
“Family life has broken down. We have to step up. We are going to do it.”
Hiring more police is not discussed.

The T-shirt confiscation is one of several measures attributed to Menino. It's possible that the Herald highlights it out of sensationalism or to make the mayor look bad. Nevertheless, I tend to agree with Splunge's assessment of Menino's motives. Pace Abdul, I suspect that if the authorities were properly doing the difficult or unpopular parts of their jobs, the provocative T-shirts would be irrelevant.

Gee, you'd almost think the folks who wrote the Bill of Rights envisioned this kind of situation... ;-)
12.3.2005 2:02pm
Justin Levine:
<i>Also, court authorities may bar such shirts from being worn in courtrooms, which are not public fora, and which the government as landlord may impose substantial speech restrictions.</i>

How do you reconcile that statement with the Supreme Court's "Fuck the Draft" decision in the context of this T-shirt dispute?
12.3.2005 3:14pm
Willard:
Justin, the cynic says that the S.C. justices had many friends who opposed the Vietnam War, and could imagine their grandchildren wearing such a T-shirt, and that is why Cohen v. California comes out the way it does. Very few judges have friends who are very sympathetic to gangsta culture, and they do not wish to imagine their grandchildren involved in such cultre. A less cynical lawyer, such as Prof. Volokh, can doubtless give an explanation in terms of legal doctrine.
12.3.2005 4:21pm
markm (mail):
Justin &Willard, it doesn't take a law professor or even a lawyer to answer that. We've all heard of gangsters killing snitches, so "Stop snitching" obviously may be a threat, depending on when and where it is said or displayed. It's hard to imagine a context where "Fuck the draft" would be seriously meant as a threat.
12.3.2005 6:24pm
Willard:
markm, yours is a good law school exam point, but this sort of analysis is not, in fact, useful in predicting how courts will rule. Rest assured, if it were World War II, a person would not be permitted to walk around with a T-shirt that said "F*** the draft." The Supreme Court would make up some reason why the First Amendment did not protect that sort of statement. (You or I could make up a dozen before breakfast, I fancy.) But a war that is opposed by respectable people at Georgetown cocktail parties generates a different jurisprudence.
12.3.2005 9:02pm
Pete Guither (mail) (www):
Note that the intent of the T-Shirt's saying may differ in cultural contexts. Some, elsewhere, have pointed out that "stop snitching" doesn't generally refer to the practice of informing the police that a crime has ocurred, but rather refers to the "career" snitch, which has become popularized by DEA practices in particular. These are low-lifes who live high off DEA money and often frame innocent people to maintain their "pull" with the agency.

See the L.A. Times: Snagging a Rogue Snitch, which I discuss here.
12.4.2005 12:24am
Visitor Again:
I haven't read it lately, but as I remember, Justice Harlan's majority opinion in Cohen vs. California was filled with qualifications. One thing Harlan relied on was that there was no evidence Cohen wore the jacket inside a courtroom (as opposed to the courthouse hallways).

Some of the judicial contempt cases involving free speech interests (the Harry Bridges cases, Pennekamp and so on) probably give some guidnce here. An intent to corrupt justice might be necessary for a contempt conviction, but perhaps not for action preventing wearing such a message as Stop Snitchin in the vicinity of a courthouse where witnesses are likely to gather. Banning the shirt anywhere would not withstand the first amendment.
12.4.2005 1:35am
alkali (mail) (www):
Note that the Mayor's office has since stated that the city are not actually going to be seizing shirts; they're just going to ask merchants to stop selling them.
12.4.2005 9:35am
The Original TS (mail):
If any plans to restrict these shirts because of their message could be any more unconstitutional, "to snitch" has two meanings. One, of course, is to act as an informant but the other is to steal.

The only thing more abhorent to the first ammendment than supressing "bad" speech is supressing "good" speech because some people might interpret it badly.
12.4.2005 12:05pm
Just John:
The rather obvious solution is to steal the shirts, but rely on the sentiment they express to avoid prosecution. "So, did this guy takes those shirts?" "Sorry, copper, I ain't seen nothin'."
12.4.2005 10:42pm
Tom (www):
Sorry to see that the venerable 1st Amendment protects such "speech." Of course, if we were to go back to the beginning, we might find that such words, printed on a shirt, were never intended to be protected by the 1st, which of course also was never intended to restrict the states anyway. But since the 1st now protects virtual pornography (something that would no doubt have much surprised the Framers)I guess pretty much any so-called "expressive conduct" goes. So the forces of chaos win again, and our society becomes yet more ugly and unsafe.
12.5.2005 10:43am
Buck Turgidson (mail):
Tom,
If you go that far back, you will find that corporate personhood was not protected either. Is it really your desire to roll back the clock or is it simply an argument of convenience on a specific issue, as it usually is for Scalia?
12.5.2005 4:29pm