Donning your motorcycle gear does not mean renouncing your constitutional rights, even if – and pay attention here – that gear includes motorcycle club patches.*
While most of our readers probably agree with that statement, the Department of Justice apparently does not. As reported in the Wall Street Journal, the federal government is seeking authority to seize the patches and logos of the Mongols Nation Motorcycle Club. This literally means the power to stop on sight anyone wearing a Mongols cut, or anything with a Mongols logo, and confiscate it on the spot.
The mechanism for doing this would be the federal government legally taking over the trademark of the Mongols’ emblem, which is the intellectual property of the Mongols Nation Motorcycle Club. The justification, in simple terms, is that the logo amounts to a “license to commit crime.”
Many people have correctly asserted that the wearing of colors is a type of speech that should be protected under the First Amendment. However, it is another clause of the First Amendment that is more directly under assault here: the right of assembly. A motorcycle club’s colors are a statement of association with a group. This is penalizing individuals not for any acts but for their identity and associations.
Of course, the First Amendment protects “the right of the people peaceably to assemble.” It doesn’t protect, for example, riots or criminal conspiracies. The problem is, the government has not shown that the Mongols as an organization are a criminal syndicate. While some individual members have been convicted of crimes, that does not indict other members nor the organization per se. The DoJ just finds guilt by association much more convenient than the long way around. Unfortunately, this handy shortcut goes right though the First Amendment.
I am not saying that the Mongols are or are not a criminal syndicate. That is for the federal government to prove, and unless they successfully do that the rights of expression and free assembly of the Mongols’ membership should remain intact.
By all means, we should vigorously prosecute violent and criminal activity, regardless of what badges, pins, patches, logos, jackets, vests, or – ahem – uniforms the perpetrators are wearing, but it is difficult to imagine any way whatsoever in which the power to seize the clothing of bikers would serve the public interest or public safety. On the contrary, it is likely to be a distraction from the actual investigation of criminal acts. It would surely be very satisfying for the federal officers, but merely antagonizing people who are perceived as low-lifes and outsiders is not a compelling government interest.
Cuts are deeply valued, highly personal possessions and statements of identity. Taking a biker’s cut is much more than confiscating some piece of paraphernalia – it is akin to stripping their identity. It is a humiliation.
And let’s be totally honest here: the Justice Department is not starting a collection of patches. The effect of this policy is to give them carte blanche to stop, harass, and search bikers without a warrant or probable cause. It gives them an excuse to get in the door and under the sofa cushions. It’s not really the bikers’ First Amendment rights they’re after, it’s their Fourth Amendment protections against unreasonable searches and seizures.
The fundamental premise the government is working on here is that wearing the colors constitutes a presumption of guilt. The unspoken intent is criminalizing identity, and it sets a dangerous precedent for stop and seizure on sight.
We have stated before that there is a huge difference between the lives, lifestyles, and culture of outsider motorcycle clubs – the so-called 1%ers – and most regular bikers you see every day at the bar. That is true. However, there really is no legal distinction between the Mongols and the Christian Joyriders of Kenosha. Neither the Mongols as a club nor a majority of its members have been convicted of a crime. This is an attempt to short-circuit the hard, important work of prosecuting criminal activity.
The ACLU is supporting the Mongols, and so should the AMA. Not that AMA funds should to toward the Mongols’ legal defense, but the AMA should take the official position that motorcycle club insignia are the intellectual property of the club and not subject to seizure, and that bikers should not be stopped on sight.
*In this essay, we will use the terms “club” or “motorcycle club” and not the terms “outlaw” or “gang,” because part of the question at issue is precisely whether the club is legally defined as a criminal organization. In other contexts, we use terms such as “outlaw” or “gang” to indicate cultural or aesthetic distinctions, not legal ones.