Stewart, Director, Arizona Department of Corrections v. McCoy
The Supreme Court declined to review a case in which lower federal courts had freed a man convicted of advising a street gang, ruling his statements were protected speech under the First Amendment's test for incitement.
Justice Stevens, while agreeing the Court should not take the case, wrote separately to flag an unresolved question: whether detailed, instructional speech to a criminal group deserves the same protection as abstract political advocacy.
How it got here: Arizona courts affirmed the conviction; a federal district court then granted habeas relief, the Ninth Circuit affirmed, and the warden asked the Supreme Court to review that ruling.
The Case in Depth
What happened
An Arizona jury convicted a man of participating in a criminal syndicate after he advised members of a Tucson street gang, at social gatherings, on how to formalize their gang, discipline members, mark territory, and build alliances with other gangs. He drew on his own experience in a California gang. He was sentenced to 15 years in prison for what Justice Stevens called a relatively minor offense.
The question before the Court
Could a man be criminally punished for giving detailed advice to a street gang, or was his speech protected by the First Amendment?
Why it matters
The decision leaves in place a lower-court ruling that shields certain gang-related advice from prosecution under Arizona's criminal-syndicate law, at least in this case. Because the Court declined to weigh in, prosecutors and lower courts nationwide still lack Supreme Court guidance on whether coaching or training members of criminal organizations can be punished even without a call for immediate violence.
What changes now
Because the Court denied certiorari, the Ninth Circuit's ruling freeing the respondent remains in effect and the case ends. Stevens emphasized that the denial should not be read as endorsing the Ninth Circuit's reasoning. The broader question of how the First Amendment applies to detailed instructional speech directed at criminal organizations remains open for a future case.
What this does not decide
The denial of certiorari is not a ruling on the merits and does not endorse the Ninth Circuit's conclusion that the respondent's gang advice was protected speech. Justice Stevens explicitly said the Court has not decided whether or to what extent the First Amendment protects detailed instructional speech to criminal groups.
Concurrences and dissents
Concurrence — Justice Stevens
“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”Stevens quotes Brandenburg's core rule to question whether it should extend to detailed instructional speech.
Justice Stevens agreed the Court should deny certiorari, largely because the 15-year sentence for the underlying conduct made the case a poor vehicle. But he wrote separately to stress that the Ninth Circuit's reasoning extended Brandenburg v. Ohio beyond 'mere advocacy' to cover detailed instructional speech, an issue the Court has never resolved. He warned that such planning-oriented speech can create serious public danger and should not automatically get the same protection as abstract advocacy.
How the Court got there
The legal reasoning, step by step
- Justice Stevens noted the Ninth Circuit had relied on Brandenburg v. Ohio and Hess v. Indiana, per curiam decisions holding that the First Amendment bars punishing advocacy of lawless conduct unless it is directed at producing imminent lawless action and is likely to do so.
- He observed that Brandenburg's own language expressly covered nothing more than 'mere advocacy,' so applying its imminence requirement to detailed, instructional speech extends the doctrine beyond what the Court had actually decided.
- Drawing on Thomas v. Collins, Stevens explained that the First Amendment has long allowed restrictions on speech with 'clear support in public danger,' suggesting that not all speech instructing others on illegal conduct needs to meet the imminence test used for abstract advocacy.
- He reasoned that long-range planning of criminal enterprises, including oral advice or training, is qualitatively different from mere exhortation and can pose a significant public danger even without urging immediate action.
- Because the Court's precedents had not yet addressed whether or how far the First Amendment protects this kind of instructional speech, Stevens concluded the issue was important, even though the harsh 15-year sentence for the underlying conduct justified letting the denial of certiorari stand.