The D.C. Council has unanimously approved a law that makes it a crime to wear a mask while protesting outside of a resident. This bizarre law was passed because animal rights activists have been protesting outside of residences in Washington. The problem is that the law could be used to curtail free speech and gives the police another arbitrary basis to arrest protesters.
My GW faculty colleague, Ward 3 Councilwoman Mary Cheh, pushed for the passage on the basis that the protesters “scared some people so much that they feel like prisoners in their own homes.” There appears, however, little attention given to the free amendment ramifications of the law. The D.C. police have been repeatedly accused of using arbitrary or unlawful means to arrest protesters, including the still pending World Bank case (in which I am serving as co-lead counsel).
A group called Defending Animal Rights Today and Tomorrow is the local voice for Stop Huntington Animal Cruelty, a group dedicated to oppose Huntington Life Sciences which provides animals for corporate science experiments. They have been protesting outside of the Dupont Circle home of a Goldman Sachs executive, who the group claims is connected to HLS. They were masks and trench coats marked by fake blood to protest the work of the European company.
If the protesters assemble in groups of more than tree without informing the police and protesting in the evening, they can now be arrested as masked in public.
Civil libertarians have roundly opposed the bill, but Chen (a constitutional law professor) insists that the law is based on a 1988 Supreme Court case allowing the criminalization of “objectionable speech.” This appears to be a reference to Frisby v. Schultz, where the Court allowed a prohibition on picketing outside of a home as “content neutral.” Justices Brennan, Marshall, and Stevens condemned the ruling as inimical to free speech. The normally liberal D.C. Council is relying on a case supported by Rehnquist, Scalia, White, Blackmun, and written by Sandra Day O’Connor.
In his dissent, Justice Stevens began in this way:
“GET WELL CHARLIE — OUR TEAM NEEDS YOU.”
In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the period of time necessary to convey its friendly message to its intended audience.
Applying that in this case, imagine if the criteria was simply wearing a mask during a protest late at night or early in the morning. Any mask. Any subject. Even a bandana would be sufficient to allow the police the discretion. For those who insist that the bandana was not over their face or that they were wearing a winter mask, it would be their words against those of the police.
Nevertheless, Council member Cheh insists that the ban is necessary “because a group is able to beat the system.”
I certainly understand Cheh’s concerns and Frisby does have language to support her position. However, I would have to disagree with the notion of “beating the system” when the first amendment is what is protecting such speech. As noted by Justices Brennan, Stevens, and Marshall, such laws sweep too broadly and invite arbitrary enforcement. The law also does not allow for anonymity since only protesters with masks face arrest. In Watchtower Bible and Tract Society v. Village of Stratton, the Supreme Court reaffirmed such protections and I previously wrote a law review piece on that case and the right to anonymity. turley-1 (The Supreme Court rejected one aspect recently in John Doe # 1, et al., v. Reed, et al. (09-559) dealing the public disclosure of signatories to a petition. 09-559
What the new D.C. law does is strip protesters of anonymity and increases the powers of the police to arrest individuals who are engaging in free speech activities. It will be interesting to watch if this law is challenged as applied in future cases.
Source: Washington Examiner
Jonathan Turley
Arbitrary enforcement is what the bad guys want. Plain and simple.
If you are so concerned about First Amendment Rights why don’t you use your great reputation to make sure that other people don’t have their finger prints taken and aren’t imprisoned by DOJ without a criminal charge like I was?
http://steamboatsprings.net/sites/default/files/2005/09/06/ccmn0906.pdf
CITY ATTORNEY S REPORT
Mr. Lettunich reported his work on the following:
1. The Federal District Court held a contempt hearing regarding Kay
Sieverding. She refused to dismiss the cases that she filed and was
arrested. Mr. Sieverding dismissed the cases but later reneged and said he will not dismiss the cases; so he may be arrested as well.
So does this mean that SOD, SWAT Teams and LEO in general cannot wear gloves and masks when they are tear gassing the protesters?
So cops even cover up the badge number with a black band….Hmm…I suppose only the bad guys will wear masks….Huh
DOJ routinely keeps the names of its officers secret. They even opposed revealing the names of employees in an employment discrimination lawsuit.
Kay,
So you were held in contempt….this has happened to a lot of folks….If the suit was without merit…you earned it…Ask Richard “Race Horse” Haynes….he did lots of time for many different contempts…What I am saying is quit your whining…You ain’t Jewish enough and I’ve yet heard you say…”I wanna go to Miami….” so suck it up as a cost of doing business in the Federal Court….
AY,
Excellent questions
kay,
That response (other than an attack on me for not working for you for free) is gibberish in context of the subject and once again illustrates why non-professionals lack the proper understanding of the law to practice it even on their own behalf. The right to public free speech has only a tangential relationship to contempt of court for non-compliant process.
Hire. Your. Own. Lawyer. Nitwit.
I’ll keep telling you that and only that in relation to your personal legal problems – problems which you in part created through your own stupidity in representing yourself and personal problems just about everyone here is tired of hearing about ad nauseum.
Our host stated: “The D.C. police have been repeatedly accused of using arbitrary or unlawful means to arrest protesters…”
Couldn’t say it any better than Buddha.
I woke up in something appoximating “a police state” about 3 and half years ago… We’re very close. Make no mistake…
(I’m a law-abiding nurse, but I’ve seen things these past few years that I never thought I’d see in U.S. I was very naive…)
My “I couldn’t say it any better” comment was in reference to the following:
“Arbitrary enforcement is what the bad guys want. Plain and simple.” -Buddha
Dear BIL
I don’t want to hire you because you make up laws. I’m tired of hearing about it too but I’m going to keep talking about it until the government requires that its Automated Booking Systems be used and that their list of offenses corresponds to the U.S. code.
Thanks Blouise,
Excellent point Buddha….
Anon Nurse….what you don’t love me no more….I am crushed…hurt…I am gonna turn into Eeyore…in a melancholic deep bass toned voice….no body likes me…everyone has forgotten by birthday….
I make up laws?
roflol
Whatever, fruit loop.
I’ll have a Blue Christmas without you too Buddha…..
Don’t cry, AY, I know anon nurse loves you like a brother
Depending….Blouise….maybe like a brother from the Ozarks….
Thanks for bringing this to our attention. It appears as though we are in a period of history where it is popular to quite the protesters… works for those with power, we will see what happens to civil liberties.
So Kay,
Tell us about this lawsuit of yours.
Look out! AY is going for his banjo!
Maybe, it has become apparent that you don’t have to be able to play very well and the banjo….well…it still sounds like a banjo…..
Yes, Bob….it would be nice to know what the hell Kay is talking about…but, what she must remember is that anything that she says can be checked out on pacer if you have an account…so, what she leaves out will be able to be filled in and verified…I think she still has the ally lumin hot on for protection from the gamma rays…..then again…how far is she from Roswell? Area 54?
hot = hat
I still don’t understand why Buddha won’t agree to take the case.
hehehe
Bob, your humor can be as dry as the Gobi. I really dig that about you.
Dear Bob
First I sued the City of Steamboat Springs for 1st Amendment Retaliation outside the context of public employment. Former Judge Edward Nottingham dismissed it without a memorandum opinion and with no rule 11 c 6 findings ordered me to pay lawfirms $104 K, and with no motion for an injunction nor reference to a statute or fraud on my part issued a NO PRO SE order. I filed in DDC for relief from judgment under rule 60b(3). DOJ put me in jail until I agreed to file a motion to dismiss. DOJ prosecutors did not file documents, it was the USMS that I interacted with.
I got some records and found that DOJ listed my offense as 5005 civil contempt. I sued DOJ for violation of the Privacy Act and they said in summary they were opposed to discovery of the statutory basis of detention but that detention is legal without a criminal charge when a judge orders it.
I have statutory tolling under 5 USC section 552a g 6.
I found the Federal Register publications for the Automated Booking System that say that it is only used pursuant to a criminal charge. DOJ appears to have spent hundreds of millions of dollars on its ABS systems which involve matching fingerprints. I wrote to USMS to get the offense codes used in ABS but no response yet. I did get the offense codes for the Prisoner Tracking System. These include 5995 contempt as well as homosexual acts, abortion, and anarchism. So to imprison me they used a system of codes that are obviously invalid.
I am looking at 5 USC 552a g 1 d for violations of subsections e(9), e(10) and or e(11).
Did you see that Glenn Fine DOJ OIG resigned? Fine was on the DOJ Data Integrity Board according to a letter I received recently from Stuart Frisch, who was its secretary. I had written to DOJ and complained about imprisonment without a criminal charge and then they repeated it. It appears that the DOJ Data Integrity Board hasn’t had meetings in years, since I have been unable to get records of their meetings.
sorry g 5 not g 6
Bob,Esq.
1, November 30, 2010 at 11:35 am
So Kay,
Tell us about this lawsuit of yours.
==========================================================
Bob!!!!! It’s official, Bob, Esq hates us!
I’m going to pack my bags, hop in my truck and go on a cross-country trek to find Bob so I can beat him over the head with a pound of wet noodles.
Kay,
You don’t pay what the Judge Order, you can be held in Contempt on a civil basis….They cannot hold you in Contempt for a Criminal Contempt for the same basis….So there..you got your answer….now pay 104k before they come and get you again….they are looking for you I am sure….
Sorry you don’t want to hear about it Blouise. But according to the ruling in my case the district didn’t even need to criminalize wearing masks in demonstrations. According to the rulings, it could have just been a judicial order that anyone covering their face in a demonstration should be thrown in jail without a trial until the judge decides to let them out.
Blousie,
The only problem with that is for punishment to be effective, the recipient must dislike the punishment. With all that pasta talk, you’re only going to encourage Bob.
… but first I gotta buy a mask …
I wasn’t held in contempt for non payment of judgment. I was held for filing papers in a different federal court.
Bob, Bob, Bob … I Kant understand why you’re doing this to us!!
Blouise:
(We’re “fam”, as a friend of mine often says…)
AY: Was that a Freudian slip, my brother from the Ozarks? …hot = hat… hot hat = hot head… Didn’t want to venture into that territory…
(Way too much coffee this morning. Home with a sore throat…)
Someone on this blog (jonolan, I think) asked me if I might not be a sycophant… It’s a far cry from “stone-head, junkie bitch”*, but I’m striving…
(* I’m not sure about the exact description, but close enough for the TB…)
Buddha Is Laughing
1, November 30, 2010 at 11:57 am
Blousie,
The only problem with that is for punishment to be effective, the recipient must dislike the punishment. With all that pasta talk, you’re only going to encourage Bob.
============================================================
Figures he’d be impervious to the threat of pasta …
anon nurse,
I’m on a mission to find Bob Esq … you’d be the perfect biological weapon (sore throat and all) … wanna come?
We could stop off and visit HenMan in Utopia … hideout
kay,
Have you read some law review articles about civil contempt?
see NY Times editorial today
Where Anonymity Breeds Contempt
Kay:
please elaborate, it sounds interesting. I am surprised Buddha is Laughing wont take it for free seeing as how he believes in transferring wealth from the haves to the have nots.
I guess he/she only believes in share the wealth if he/she is on the receiving end of the ill gotten gain.
Very interesting, but not really unexpected.
Wow! This thread is getting really deep. Kay, please excuse me if I don’t understand a thing you say. It isn’t you, it is me. I just can’t understand why someone could be held in contempt for being contemptous of what the judge ordered.
Prof. Turley,
This mask law seems to criminalize a family of four children wearing costumes and masks and going door to door trick or treating. Is this the Religious Right’s way of attacking the devilish holiday of Halloween??
Dear Quizzical
The Non Detention Act prohibits our government from imprisoning our citizens without a statutory citation. It is irrelevant what some state judge may have done sometime in the past. Federal judges are bound by federal statutes.
Federal judges don’t have their own jails. USMS is a DOJ component and is bound by what if publishes in the Federal Register.
Okay Bob … now you’ve gone and done it. Another thread lost to the self-absorbed …
The District of Columbia is a federal component too
Blouise:
LOL… Sure, I think he was lurking over on the Corrections page — some good stuff, but I don’t want to steal his thunder… Then it’s off to HenMan’s Utopia… (But I’m buying some of what Bob, Esq. is advertising, just in case we have to fly to Utopia…)
“I’ll be your biological weapon, baby…” — isn’t that a song? Oh, no — that’s “I’ll be your sledgehammer…
(I’d better be careful, lest the police show up at my door…)
Anyway, Blouise… Sure, “use me”…
Caffeine level off the charts…
And now GG’s here… Am I on the wrong thread? (Sorry G. — too much caffeine… — it’s nothing personal…)
Let’s get going Blouise. I’ve got my new underwear (as in “4th Amendment” underwear), so I’m ready for the body scanners…
Let’s head for HenMan’s Utopia.
Reagan’s Malodorous Transient Vapor,
Oh yeah, I’m all about personal gain – that’s why I advocate humanism, criminal and social justice as well as safety systems that benefit all of society instead of adopting your “me, me, me and my profits – screw everyone else” mantra.
Pst! Your desperation and ethical malfunction are showing again.
anon nurse,
Oh well, too late now
Take care of that throat!
Lots of viruses floating around …
anon nurse,
My truck is far more comfortable than a plane. Bring toilet paper in case we have to go to New Jersey …
Blouise,
Too late? Too late? No, no, no… Say it isn’t so..
We could compare the demonstrations by the animal rights activists with other demonstrations in residential neighborhoods. There has been much discourse over the years re gay rights demonstrations, anti abortion demonstrations etc.
With the current economic problems, unemployment, foreclosures etc. there could be a lot of picketing etc. in neighborhoods and with masked people security cameras are no deterrent to breaking and entering while you are there.
There are a lot of serious implications for society.
Anon Nurse,
Does that meat you can’t love me like a Brother as Blouise suggested…dang…You know they say incest is the best kept family secret….its a family affair….a gift that keeps on giving…….and giving…..
Kay,
You still have not answered….but if one files papers in a wrong court…and the Judge ask you to dismiss it based upon the request of a Prosecutor….if the FRE have not changed no responsive pleading is required when the issue of Jurisdiction is being challenged….
AY,
LOL Very funny…
Why is this a problem?
anon nurse and Blouise,
I must have missed something. Where is this Henman’s Utopia that you speak of? I hope it is on a warm tropical island somewhere!
First of all there was no government prosecutor. If USGov wants to intervene in a federal lawsuit they are requited by Rules of Civil Procedure Rule 20 to file a motion to intervene with a statutory basis. They actually do that in different cases I have seen on-line. But there is no reason that DOJ has publicly announced why it cared a hoot about Sieverding v. City of Steamboat Springs CO.
I originally claimed jurisdiction in DC because I had sued the ABA as a proximate cause in the D of Colorado case. I claimed that the events in Steamboat wouldn’t have unfolded the way they did if the ABA had acted differently and that they acted the way they did with knowledge of the risk they were putting the public in. I claimed a new interpretation of the Right to Sue clause in 1985(1).
1985 (1) also includes right to contract and I think was the basis for much employment law. An old law seldom cited. My criminal defense lawyer William Hibbard thought it was plausible if a bit of a stretch. My feeling when I decided to add the ABA as a defendant was that it should at least account for its behavior.
In the Col case, I filed multiple motions for summary judgment stating more details about the claims on each party. So I filed a separate one about the ABA itself in which I detailed at great length various ABA actions and publications. Their in house counsel sent a letter to former Judge Nottingham and asked him to stay the summary judgment process in favor of the defense Motions to Dismiss, which is what he did. So to get themselves out the ABA caused all my claims against all my defendants to be dismissed and also denied me a hearing on the reputation issues related to my having been prosecuted in Steamboat without a written statement of probable cause, based on my accusing my neighbor the city council president of violating the constitution (14th amendment) by violating the zoning with the approval of the city.
The ABA has an office in D.C. so I used that initially for jurisdiction under DC long arm statute which then brings in the conspirators. So I stated that the ABA had caused us not to get a hearing in the merits in Colorado by asking Nottingham to skip the summary judgment process. And I had the letter from the ABA to Nottingham to back me up.
A second basis for jurisdiction is that a DC law firm directed the litigation in Colorado. In the Colorado attorney bills there were references to “O’Brien Butler” before the Colorado case was dismissed. They were advising on defense strategies in Colorado and there were references to “Mutual Insurance” and “the insurance carrier”. When they responded to the D.C. complaint they filed in the name “O’Brien, Butler, McConihie & Schaefer” a DC law firm. I eventually found out that the Schaefer was on the Internet site of Mutual Insurance of Bermuda as being its CEO and Chief Counsel “since its inception”. This company is no longer on the Internet (at least not when I checked last) but never had a NAIC number and the State of Colorado Division of Insurance has no record of it. On the old Mutual Insurance website documents, which I filed on PACER years ago, the company claimed to sell insurance to publishers all across North America.
My case has many strands and one is to the McCarran Ferguson Act.
rafflaw,
As strange as this will sound, it’s referenced in the “prostitution” thread…
Please join us, if you’d like, but you might want to pick up some 4th amendment undergarments (see Corrections) to get ready for the full-body scanners, in case we have to catch a flight…
“Arbitrary enforcement is what the bad guys want. Plain and simple.” -Buddha
——–
I take quite a bit of umbrage to the suggestion that Professor Cheh is a “bad guy.” I may not totally agree with the law, but Professor Cheh’s integrity is unimpeachable.
Maybe we can elevate the discourse and dump the bullshit arguments that policies that we disagree with are per se the work of “bad guys”? Maybe? Maybe we can be a little more nuanced? Maybe just a little smarter? Maybe?
I highly doubt it, but a dude can dream can’t he?
Wayne,
“Bad guys want X” is not the same as “only bad guys want X.”
Looks like my work here is done.
Anon Nurse,
You don’t like Blouise’s suggestion……
I hate to be always left in the lurch as far as not understanding, but if there were a group (of three or more) people shouting “You should die” outside my house, masked or not, I would like to think the police would be able to arrest them. What’s the “Castle” doctrine here?
And I’d like to think the police would not issue a permit for them to do it even if they asked for it.
If a Burqua covered person(s) stands outside a Synagogue and shouts “You should die”, would the police be unable to arrest them? Or do they have to wait until a criminal act is performed like throwing a bomb, or pouring blood on the lawn, or (in the case of environmentalists) burning down a house?
How can society protect itself from the next reasonably expected act following hate speech? Surely we’ve seen enough vicious acts following hate speech to know what is likely to occur.
I understand the principle, but I don’t understand the boundries. And I don’t understand if there are none when hate speech, which has in the past led to violence, is involved.
“Blouise 1, November 30, 2010 at 12:34 pm
anon nurse,
My truck is far more comfortable than a plane. Bring toilet paper in case we have to go to New Jersey …”
OUCH!!
Wayne,
What Gyges said about the use of “only”. Had I meant “only”, I would have used it or a similar modifier.
I think that the principle is that First Amendment speech is limited when there is criminal intent or when the facts show that it is associated with criminal acts. Even then the restriction must be the least amount required.
The demonstrators due have a legitimate concern that they will be put into a data base solely for demonstrating as has happened before. In fact, I remember reading something about medical companies taking photos of medical students who were protesting something to do with medical research.
do have sorry
AY,
Color me “dense”…
eniobob,
I think that Blouise is our travel coordinator…
My 2-cents worth: The truck will be a bit of a hardship; and I won’t get to wear those 4th Amemdment undergarments, nor tick off those TSA workers by wearing them…., but it’s a possibility. Depends on how many of us make the trip…
Sorry if someone was offended by the strength of my opinions.
Anon nurse,
Is that 4th Amendment wear nifty or what?
Kay,
By all means; please continue.
Wayne,
What Gyges said about the use of “only”. Had I meant “only”, I would have used it or a similar modifier.
——
Like I said: a dude can dream.
“Against stupidity, the Gods themselves contend in vain.”
Sigh.
Wayne,
Gods? What gods? Whose gods?
anon nurse,
I am not sure I can handle the 4th amendment garments! The sound of it is scary.
Bob,Esq.
1, November 30, 2010 at 3:14 pm
Looks like my work here is done.
===========================================================
Aaaagh … you can’t run, you can’t hide … I will find you!
rafflaw
1, November 30, 2010 at 5:09 pm
anon nurse,
I am not sure I can handle the 4th amendment garments! The sound of it is scary.
==========================================================
My truck is a crew cab so you will all be very comfortable … I will invest in Depends for those who don’t wish to wear Bob’s 4th amendment garments whilst traversing New Jersey (sorry eniobob … perhaps we could take a bathroom break at your house?)
It foolish jurisprudence aside, I resent the District’s not-so-subtle affront to Billy Joel.
Well we all have a face
That we hide away forever
And we take them out and
Show ourselves
When everyone has gone
Some are satin some are steel
Some are silk and some are leather
They’re the faces of the stranger
But we love to try them on
“(sorry eniobob … perhaps we could take a bathroom break at your house?)”
You got it!!
BTW if our Governor keeps blowing all this government money,we may be come part of New York or Pennsylvania.
He blew another grant.
Bob Esq.,
“Is that 4th Amendment wear nifty or what?”
Yes. What a great idea. We’ll, of course, be singled out for a “strip search” when we wear it, but it will be worth it…
—————–
Regarding my spelling — “Amemdment” (see previous comment), I’ve started self-medicating, in advance of the trip…
—————–
rafflaw, No 4th amendment UGs required. We’re a “live and let live”, kind o’ group, I think…
————–
And Blouise…. you’re already proving worthy of your title…
mespo,
Perfect. (Love the the whistling at the beginning…)
BEST TRUE LAWYER STORY OF THE YEAR, DECADE, AND POSSIBLY THE CENTURY
This took place in Charlotte, North Carolina . A lawyer purchased a box of very rare and expensive cigars, then insured them against, among other things, fire.
Within a month, having smoked his entire stockpile of these great cigars, the lawyer filed a claim against the insurance company.
In his claim, the lawyer stated the cigars were lost ‘in a series of small fires.’ The insurance company refused to pay, citing the obvious reason, that the man had consumed the cigars in the normal fashion.
The lawyer sued – and WON! (Stay with me.)
Delivering the ruling, the judge agreed with the insurance company that the claim was frivolous. The judge stated nevertheless, that the lawyer held a policy from the company, in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable ‘fire’ and was obligated to pay the claim.
Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000 to the lawyer for his loss of the cigars that perished in the ‘fires’.
NOW FOR THE BEST PART…
After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!! With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000 fine.
This true story won First Place in last year’s Criminal Lawyers Award contest.
ONLY IN AMERICA …..
NO WONDER THE REST OF THE WORLD THINKS WE’RE NUTS
eniobob,
HenMan’s Utopia is sounding better and better…
eniobob,
That is one of the best stories ever … Thanks, eniobob
eniobob,
What Blouise said. That was awesome! And a perfect example of “too smart for your own good”. lol
Wayne,
I have a simple solution if you find my posts not meeting your intellectual standards and if you have a problem with the idea that there are bad people in this world who want to deprive you of your rights as offensive?
Don’t read my posts.
A corollary of the right to free speech is the right to ignore. It is far better to be offended by what I actually say though instead of conflating something to be offended by. Had I meant Chen specifically or that only bad people have bad ideas, that’s what I would have said. If you have a problem with that? That’s your problem.
Or keep reading my posts and be offended – conflated offense or authentic. Kinda like poking yourself in the eye, isn’t it? But since to read or not to read is your choice, your offense is a self-inflicted wound. In any case, be as offended as you want.
I really don’t care either way.
I will pass along your thoughts on the Lawyer story to my buddy who sent it to me.
President Jimmy Carter admitted to having lust in his heart.
It’s what you do that counts, not what you think. Thinking good deeds isn’t the same as doing good deeds just like thinking bad thoughts is not the same as doing bad things.
reader brings up a good point in the distinction between mens rea and actus reus. That’s one of the reasons “hate crimes” are so legally offensive. Hating, while having drawbacks of its own, is an internal emotional state but any action taken based on that state is covered by other criminal statutes. Thought without action is simply thought. To create “hate crimes” is simply an endeavor at being the Thought Police.