Of Juggalos and Subway Vandalism: Another Weird Week for Free Speech

It’s been a weird week—well, month—for the First Amendment.  We’ve seen good and bad portions in the GOP platform, a stupid movie trailer that the White House doesn’t know how to handle, and even a West Wing reunion that gives the lie to campaign finance reform rhetoric.  Here in Wyoming, us WyLiberty attorneys went to federal court to argue for Free Speech, literally and figuratively.  We don’t know the verdict yet, but we did largely win over the editors at the Casper Star Tribune, and anyone who follows the Trib and WyLiberty knows that’s no small feat.

Just when things couldn’t get more jam-packed for free speech in September, make room for the Juggalos.

As a native of the suburbs of Detroit, I bring certain humility regarding a dying city that more optimistic people have described as “coming back” since, say, 1968.  That said, Detroit retains some diamonds in the rough.  The city was and is Motown, and in more recent years has produced music sensations Eminem, Kid Rock (who played Cheyenne last year at Frontier Days), Jack White, and so on.  Even in the rubble, Detroit and its metropolitan area a cauldron for great music.

And, along with that, objectively terrible music.  Zany, gross, pathetic, I-shudder-to-call-it-music music.  One example is the work of Insane Clown Posse (ICP).  They look almost as bad as they sound:

 Having said that, there’s no accounting for taste.  These clowns have done very well for themselves, sold a number of records and garnered a cult-like fan base, the most extreme of whom wear makeup themselves (or opt for permanent tattoos) and refer to themselves as Juggalos. (I give ICP credit for their fan appreciation and not taking themselves too seriously.) 

ICP concerts are known to be very messy—sometimes violent—affairs and some Juggalos (and Juggalettes—seriously, that’s a word) have been arrested for violent crimes.  But does this make the Juggalos a criminal organization? The FBI thinks so, and indicated in its 2011 National Gang Threat Assessment that the Juggalos are a “gang.”

Crips, Bloods, Hell’s Angels… and Juggalos. 

Naturally, this kind of assessment may chill the Juggalos from “peaceably . . . assembl[ing],” which is their right under the First Amendment.  Granted, “peaceably” might not be the exact word used to describe the Gathering of the Juggalos, but it exhibits nothing close to organized crime.

On Tuesday ICP and its record label filed a lawsuit against the FBI, demanding the release of documents that the agency used to draw its conclusion about the Juggalos.  From there, I expect a suit may follow to demand the FBI retract its categorization. 

Meanwhile, one member of the free press decided that vandalism is protected under the First Amendment, perhaps along with assault and battery:

I wish Mona Eltahawy the best of luck with her legal defense, but don’t expect it will go very far without some significant revisions.  I’m one of those “free speech types” who will defend flag burning, but that does not mean I’m okay with anyone burning your flag, or spray-painting your billboard.  (See also a must-read post from Orin Kerr at Volokh Conspiracy regarding the criminal procedure issues behind this arrest.) 

Only three days left in September.  As far as free speech goes, could this month get any weirder?