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Thursday, February 21, 2019

ACLU Defends Mongols Again

Yesterday David Loy, who is the Legal Director for the American Civil Liberties Union of San Diego and Imperial Counties in Southern California, filed a friends of the court, or amici curiae, brief protesting the proposed criminal forfeiture of the insignia worn by members of the Mongols Motorcycle Club.
That extraordinary punishment, which Mongols attorney Joseph Yanny has called a “death penalty” for the club, results from a federal racketeering case styled United States versus Mongol Nation, an Unincorporated Association. Last December 13, an eight-woman, four-man jury simultaneously decided that Mongol Nation owned the Mongols Motorcycle Club’s various symbols; that the unincorporated association was a separate entity from the club and that the association was guilty of racketeering.
None of the jurors ever actually attended law school. Their decision suggests that none of them had ever read the Constitution. There has been some informed speculation that most of the jurors were confused about what they were being asked to decide.
On Janaury 11, the same jury voted to “forfeit,” or confiscate, the Mongols’ name (which prosecutors called the “word mark”); the club’s logogram (which prosecutors called the “picture mark”); and the two marks used together (which the government told jurors was the “combined mark.).

Funny Hats

All of this was public relations.
This is mostly a case of a couple of prosecutors named Stephen R. Welk and Christopher Brunwin bringing the same case over and over hoping for a different result over a span of almost 11 years. This time they managed to doubletalk a confused jury into giving them a win.
“The big issue” as this page has previously reported, is “whether Americans have the right to be Mongols, Hells Angels, Vagos, Pagans, Outlaws, Bandidos, Boy Scouts, mariachis, Masons, mummers or nuns.” The Mongol Nation case, and two cases that preceded it – United States versus Cavazos et al. and Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General – are, simply, an attempt to ban funny hats.
The Las Vegas Sun put it this way in October 2008, when all this started “The most compelling detail to emerge from ‘Operation Black Rain’ is this: Prosecutors won the right Wednesday to bar the indicted Mongols from owning anything bearing their trademarked logo.”
Actually the Sun got it real wrong. Legal bureaucrats do not have some “right” to ban Americans from being Mongols or from wearing funny hats. Americans hold those rights, as our founders put it, inalienably.
The case that seemed to have settled that once and for all was Rivera.


In 2009, after the government had temporarily seized control of numerous indicators of Mongols membership and affinity, a Mongols patch holder named Ramon Rivera filed suit to stop the seizures. The judge who was then in charge of the Cavazos case and who had authorized the seizures in the first place, the now diseased Florence Marie Cooper, adjudicated the Rivera suit and ruled that motorcycle club patches are constitutionally protected “collective membership marks.” She told the government to stop stealing them which threw Assistant U.S. Attorney Welk into a tizzy. He called her ruling “premature adjudication.”
“The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association,” Cooper ruled. “The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection…. If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal.”
“Prohibiting speech of this nature constitutes an attack on a particular viewpoint.” Her ruling held up on appeal.
The lawyer who represented Rivera was David Loy, the same ACLU attorney who filed yesterday’s amici brief. Loy so infuriated Welk that Welk tried to prevent a judgment against the government to pay Loy for defending Rivera. Loy prevailed on that issue too. So it is probably worth paying attention to what Loy had to say yesterday, both in his brief and in a press release.

Press Release

“The Department of Justice is waging a long-running campaign to silence members and supporters of a controversial motorcycle club from expressing their affinity with the club by displaying its logo,” Loy’s release began. “This relentless attack should trouble anyone who cares about the freedoms of speech and association.”
“A trademark is a unique form of property: It does not exist apart from the business or entity it symbolizes, and it cannot be transferred independent of that business or entity. Because the government has no right to assume the identity of the Mongols Motorcycle Club, it cannot seize the club’s trademark.”
“Even if the government could take those rights, they confer no power to confiscate items bearing the trademark. A trademark does not confer an absolute right to prohibit all use of the mark. It only authorizes the holder to prevent purely commercial use of the trademark that creates confusion as to the origin of goods or services. That’s why the Campbell’s Soup Company couldn’t prevent Andy Warhol from painting images of Campbell’s Soup cans and Mattel can’t prohibit Danish-Norwegian dance-pop group Aqua from singing “Barbie Girl” or stop an artist from photographing Barbie dolls. Likewise, the government could not legally prevent an individual from expressing support for the Mongols Motorcycle Club – or opposition to abuse of power – by wearing its logo.”
“Trademark issues aside, the First Amendment prohibits the government from censoring the right of people to express their membership in or support for an association. It also prohibits the government from targeting the content or viewpoint of speech associated with a particular group, regardless of what that group stands for.”
“The government certainly can’t prohibit people from wearing shirts or buttons supporting the Democratic Party, Black Lives Matter, or the National Rifle Association — and it can’t prohibit people from wearing the Mongols logo either.”


The ACLU elaborates on these points in Loy’s surprisingly concise, 23-page brief.
Loy tells the court that “the display of items bearing the Marks to express identity or association is protected speech. The government’s forfeiture strategy conflicts with the First Amendment because the government may not prevent the Club or its members or supporters from using the Marks to express themselves.2 To wear or display items bearing the Marks is the essence of protected speech for at least three reasons.”
“First, the display of words or images is pure speech…. Second, freedom of speech also protects the individual’s interest in self-expression of identity…. Third, the First Amendment protects the right to wear distinctive clothing or insignia to proclaim association or affinity with an organization…. The display of insignia by motorcycle members communicates the fact of their association with this particular kind of organization…. Here, the collective membership mark acts as a symbol that communicates a person’s association with the Mongol Nation, and his or her support for their views.”
You can read the press release here and find the ACLU brief here.