I must confess no interest in attending Insane Clown Posse’s Gathering of the Juggalos, but that’s the beauty of America: if someone wants to paint their face like a clown and drink Faygo all night long, that’s their right.

Or is it? On Friday, the Insane Clown Posse announced that they had hired counsel to investigate their designation as a “hybrid” gang by the Federal Bureau of Investigation’s National Gang Intelligence Center’s 2011 National Gang Threat Assessment, and they’ve set up a website asking for their fans to provide information if they’ve been stopped by federal law enforcement agents, or subjected to any sort of increased sentencing or other denial of rights, as a result of their “Juggalo” status.

It’s actually old news that the FBI considers the Insane Clown Posse to be a gang — Spencer Ackerman reported it back in October 2011 — but it seems the government is really moving forward with it with the recent arrest of Mark Carlson, formerly of the U.S. Marshal Office’s New Mexico’s Most Wanted list, who, as Camille Dodero reported, was identified as “a Known Gang Member of the Insane Clown Posse ‘Juggalo.’”

Let’s start with the obvious: nobody, not even the FBI, is proposing that being a Juggalo is itself a crime. But one of the ICP duo summed up the problem at his seminar announcing the effort:

The judge is not going to sentence [people like Mark Carlson] as a civilian,” Violent J told the crowd, referencing that case and others like it. “The judge is going to sentence you as a gang member selling weed.”

It’s a legitimate concern; I certainly wouldn’t want anyone to be subjected to enhanced penalties simply for identifying themselves as a reader of my blog, so I can respect why he’s concerned. (Dodero has a longer interview with them here.) So, can the government actually act on its designation of the Juggalos as a gang, or is there a right to be a Juggalo? 

I’ve spent a lot of time on this blog discussing First Amendment Law, with the hopes that it would help people understand what rights they do have and what rights they don’t have. Free speech issues (including freedom of association issues) are rarely as clear as people think they are, at the moment we have ventured particularly strange era in which worthless speech like dog-crushing videos or homophobic protests of soldiers’ funerals and lying about winning the Congressional Medal of Honor is protected, while serious protests about social issues have limited free speech rights and several makers of pornographic movies involving consenting adults sit behind bars.

Let’s start with some basics. In relevant part, the First Amendment holds, “Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble …” In Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984), the Supreme Court held that there is a “right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” So strong is this right that, for example, the Boy Scouts of America’s right to determine its own associations trumped New Jersey’s anti-discrimination law in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), which held the Boy Scouts’ decision to fire a gay Scoutleader was protected by First Amendment, despite New Jersey state law prohibiting discrimination in employment on the basis of sexual orientation.

Of course, another core free speech value is the recognition that the government is not supposed to pick and choose among speech it likes and doesn’t like. “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 641 (1994). “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance.” Cohen v. California, 403 U.S. 15, 24-25 (1971). One man’s Insane Clown Posse is another man’s Mozart — and, given the subject matter, let’s not forget that Herr Mozart had a penchant jaw-droppingly obscene remarks, second only to the great Latin poet Gaius Valerius Catullus, author of “one of the filthiest expressions in Latin — or any language.”

The government obviously does have some compelling interest in suppressing criminal organizations and punishing criminal conspiracies, and so, for example, the Supreme Court has held that knowing membership in an organization advocating the overthrow of the Government by force or violence, on the part of one sharing the specific intent to further the organization’s illegal goals, may be made criminally punishable. Scales v. United States, 367 U.S. 203 (1961).  A key part, however, is the “intent” requirement, and the government cannot penalize someone for merely being part of an organization. See, e.g., United States v. Robel, 389 U.S. 258 (1967)(“ It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.”) Yet, as of today it still isn’t clear exactly what the right to association entails, and thus every week state courts routinely consider free speech objections to gang-related criminal convictions.

The Supreme Court most recently considered all of these issues in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010), a case involving a criminalization of “knowingly providing material support or resources to a foreign terrorist organization,” but also left many issues unresolved. The Court ruled that, first, the government is entitled to considerable deference in deciding which organizations are “foreign terrorist organizations” and, second, that Congress can lawfully prohibit people from training members on those organizations on “how to use humanitarian and international law to peacefully resolve disputes” and “how to petition various representative bodies such as the United Nations for relief.”

The Court, however, side-stepped the issue of whether the government can prosecute people who “engage in political advocacy on behalf of Kurds who live in Turkey” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka” if that political advocacy “materially supports” the terrorist organizations. But the Court did leave in a huge caveat:

All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations. We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, § 2339B does not violate the freedom of speech.

All of which is to say that the Juggalos, for better or for worse, are walking into a hot field of Constitutional law.

I think the federal government, particularly the criminal enforcement agencies of the executive branch, are on solid constitutional ground in designating the Juggalos as a “gang” — to the extent that decision is even reviewable by courts, the question is merely if the government can invent some rational basis for the designation — but the government is likely going to run into constitutional issues if it imposes additional restrictions on or penalties for Juggalos merely because they’re Juggalos, without some sort of showing that they had the “specific intent” to benefit a criminal enterprise.

Consider City of Chicago v. Morales, 527 U.S. 41 (1999), in which the Supreme Court struck down a Chicago “Gang Congregation Ordinance” which prohibited “criminal street gang members” from “loitering” with one another or with other persons in any public place because it was not narrowly tailored to the permissible purpose of preventing loitering with an apparently harmful purpose or effect. (The court then had debating plurality and minority opinions discussing other details about the right to association.)

So there may indeed be a free speech right to be a Juggalo, just not one trying to aid any criminal endeavors.