Thou Shalt Not Speak Its Name: California Man Barred From Mentioned the First Amendment or Free Speech in Trial Over Protest In Front of Bank of America

220px-Chalkimages-1Jeff Olson, 40, is facing a potential 13-year jail sentence for perhaps the world’s most costly sidewalk art. A former aide to the U.S. Senator from Washington, Olson used water-soluble statements like “Stop big banks,” and “Stop Bank Blight.com” outside Bank of America branches last year to protest the company’s practices. He eventually gave up his protest but prosecutors later brought 13 charges against him. Now a judge has reportedly banned his attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.” It appears someone associated with Bank of American could finally go to jail, but it will not by the bank officials in the financial scandal. It is the guy writing slogans in chalk in the sidewalk.

I have long been critical of the degree to which American judges are now barring parties from making defenses and arguments before juries. These rulings often have an outcome determinative impact on trials. In this case, free speech was the motivation of Olson, but he will reportedly have to defend himself as just a guy who walked up and started drawing in front of this bank.

Olson and his partner had been campaigning to get people to take their money out of the bank. This campaign led to a confrontation with Darell Freeman, vice president of Bank of America’s Global Corporate Security, who reportedly demanded action from local prosecutors. Olson stopped when contacted by the San Diego Gang Unit in 2012.

Yet, the bank insisted the chalk caused $6,000 to clean up, a rather suspicious claim. These were slogans written on the sidewalk. Prosecutors hit him with 13 counts of misdemeanor vandalism charges and $13,000 in restitution to the City and to Bank of America.

Freeman reportedly continued to hound police to bring charges and reports state that on April 15, Deputy City Attorney Paige Hazard contacted Freeman with the good news. “I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported.”

Then Superior Court Judge Howard M. Shore entered the case. Shore granted Deputy City Attorney Paige Hazard and law student and city attorney employee William Tanoury. Also accompanying Hazard were two other representatives from the City Attorney’s side.

For Olson, and any free-speech advocates and political activists, the day couldn’t have gone much worse.

Judge Shore granted Hazard’s motion to prohibit Olson’s attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial. Shore ruled that “The State’s Vandalism Statute does not mention First Amendment rights.” Of course, he could simply instructed the jury that it is not a defense but clearly worries about jury nullification.

While the law does not mention the first amendment, should that mean that Olson is barred from testifying on motivation?

There is also the question of the constitutionality of a statute that bars political statements on a sidewalk written in chalk. The greatest question for me however is the overcharging by the prosecutors. I am also surprised that Bank of America (which avoided charges of its own officials in financial scandals) did not reign in its security contractor and state that they do not ask for charges in the case.

Olson will clearly not receive anything near 13 years and may not serve any time in jail. However, this seems like a case of overkill by the prosecution. What do you think?

Source: Reader

88 thoughts on “Thou Shalt Not Speak Its Name: California Man Barred From Mentioned the First Amendment or Free Speech in Trial Over Protest In Front of Bank of America

  1. Now a judge has reportedly banned his attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.”

    *****

    How does a judge have the legal power to ban an attorney from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech when defending his client in court?

    I’d say overkill is an understatement!

  2. When a goverment is by the corporations and for the corporations, the humans have no rights. Need we say more?

  3. The judge’s ruling would sound better in the original Russian. Does California allow appeals against judges’ trial rulings while the trials are still going on, or only after a verdict or plea deal?

  4. Judge Shore should be suspended immediately.

    And he should be subject to a very thorough and unpleasant examination of his finances and his relationship to Bank of America.

    If this isn’t the appearance of impropriety, no such thing exists.

    The words “fascist puppet” come to mind.

  5. Seriously. I’m almost impossible to anger, but this? This really pisses me off.

    Take your thumb off the scales of justice, “Judge” Shore.

  6. Gene,

    What about the prosecutor bringing charges against Olson for writing on the sidewalk with washable children’s chalk? Does the sidewalk belong to Bank of America?

  7. Doesn’t engender much respect for the “justice system”.

    Society is dependent on people adherring to the spirit as well as the letter of the law. When injustice becomes rampant, then people find ways to game the laws and society starts to break down.

    Thank you BofA and Judge Shore.

  8. Bank of America: Too Crooked to Fail
    The bank has defrauded everyone from investors and insurers to homeowners and the unemployed. So why does the government keep bailing it out?
    By Matt Taibbi
    3/14/12
    http://www.rollingstone.com/politics/news/bank-of-america-too-crooked-to-fail-20120314

    Excerpt:
    At least Bank of America got its name right. The ultimate Too Big to Fail bank really is America, a hypergluttonous ward of the state whose limitless fraud and criminal conspiracies we’ll all be paying for until the end of time. Did you hear about the plot to rig global interest rates? The $137 million fine for bilking needy schools and cities? The ingenious plan to suck multiple fees out of the unemployment checks of jobless workers? Take your eyes off them for 10 seconds and guaranteed, they’ll be into some shit again: This bank is like the world’s worst-behaved teenager, taking your car and running over kittens and fire hydrants on the way to Vegas for the weekend, maxing out your credit cards in the three days you spend at your aunt’s funeral. They’re out of control, yet they’ll never do time or go out of business, because the government remains creepily committed to their survival, like overindulgent parents who refuse to believe their 40-year-old live-at-home son could possibly be responsible for those dead hookers in the backyard.

    It’s been four years since the government, in the name of preventing a depression, saved this megabank from ruin by pumping $45 billion of taxpayer money into its arm. Since then, the Obama administration has looked the other way as the bank committed an astonishing variety of crimes – some elaborate and brilliant in their conception, some so crude that they’d be beneath your average street thug. Bank of America has systematically ripped off almost everyone with whom it has a significant business relationship, cheating investors, insurers, depositors, homeowners, shareholders, pensioners and taxpayers. It brought tens of thousands of Americans to foreclosure court using bogus, “robo-signed” evidence – a type of mass perjury that it helped pioneer. It hawked worthless mortgages to dozens of unions and state pension funds, draining them of hundreds of millions in value. And when it wasn’t ripping off workers and pensioners, it was helping to push insurance giants like AMBAC into bankruptcy by fraudulently inducing them to spend hundreds of millions insuring those same worthless mortgages.

    But despite being the very definition of an unaccountable corporate villain, Bank of America is now bigger and more dangerous than ever. It controls more than 12 percent of America’s bank deposits (skirting a federal law designed to prohibit any firm from controlling more than 10 percent), as well as 17 percent of all American home mortgages. By looking the other way and rewarding the bank’s bad behavior with a massive government bailout, we actually allowed a huge financial company to not just grow so big that its collapse would imperil the whole economy, but to get away with any and all crimes it might commit. Too Big to Fail is one thing; it’s also far too corrupt to survive.

  9. Elaine,

    Oh yeah. He should be getting some critical scrutiny of his finances and suspended as well. I’m just especially outraged at Shore given that the stop gap for the prosecutor’s foolishness not only didn’t throw out the specious charges, but actively participated in what appears to be a fascist/corporatist witch hunt because BoA got upset some citizen thought they were a blight upon our society.

  10. My impression is that it is quite common for judges to bar defendants from using the defense that they want to use. Three cases come to my mind immediately:-

    1/ Bradley Manning has been barred from bringing up his motivations for leaking to Wikileaks;

    2/ Aafia Siddiqui was barred from mentioning in court in 2010 that she had been imprisoned and tortured by the US for 5 years between her kidnapping in 2003 and 2008 when she mysteriously turned up on a street in Ghazni. This fact would have been necessary to indicate that the US was acting in bad faith in her prosecution and therefore the numerous army and FBI witnesses had reason to conspire in lying;

    3/ I came across an article this week about a US attorney in one of the medical marijuana states prosecuting medical marijuana suppliers and getting the judge to forbid the defendants mentioning in their defenses that the state authorizes supply of medical marijuana.

  11. OT:

    10:06 am

    The New York Times
    Supreme Court Strikes Down Defense of Marriage Act

    The Supreme Court ruled 5-to-4 on Wednesday that the Defense of Marriage Act is unconstituional.

    From SCOTUSblog

    Roberts dissents. Scalia dissents. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

    From the decision: “DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty.”

  12. Still OT on DOMA:

    http://projects.nytimes.com/live-dashboard/2013-06-26-supreme-court-gay-marriage

    SCOTUSblog quotes from the decision:

    “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”

  13. How about starting a Wall of Shame over on the side of this website? Then, all these creep judges can have their names immortalized in shame as they should be.

    Otherwise, there are so many of these horrid judges that after awhile we forget their names and they get to keep doing their bad stuff.

    A Wall of Shame would keep their names (with a link to their actions) in front of the public until and if they have mended their ways or apologized.

  14. Steve Fleisher – Does any thinking person really have any respect left for our government or justice system?

  15. Since the sidewalk is public property, I wonder how B of A has any standing. It is also obvious that we are in the wrong business since sidewalk cleaning is a FAR more lucrative practice than even the law or many other more useful occupations. The DA needs to be thrown out next election and the judge needs to be examined for fitness.

  16. I could see some curmudgeonly old guy suing some girls for putting hopscotch blocks on the sidewalk near his house. The older men get the more territorial they become.

  17. What a bunch of garbage. So you wonder why it is alleged the damage is $6,000. Here is the reason in my view:

    13 Counts to six thousand dollars.

    California Penal Code 594- (1) (B)
    ” (b) (1) If the amount of defacement, damage, or destruction is
    four hundred dollars ($400) or more, vandalism is punishable by
    imprisonment pursuant to subdivision (h) of Section 1170 or in a
    county jail not exceeding one year, or by a fine of not more than ten
    thousand dollars ($10,000),”

    So 13 x $400 = $5,200 . Then pump it up to the nearest grand above. Pad up the damage to inflate the charge or make the elements of the crime fit. So which came first, the damage assessment or the charging decision?

  18. MikeS, My new message has been quite similar to that. We don’t want people coming to San Diego and turning it into say..Florida, w/ old people just coming there to die and complain. But, comparing it to Texas is inspired, that’s going to be my new line. Thanks!

  19. It would be glorious to see some large news channel do a special on this and make B of A look like the thugs they are here. If it rose to a big controversy maybe the charges would magically go away.

    If it went to trial, a jury nullification would be good an proper.

  20. BoA just wrote all over itself in indelible chalk. Obviously the stupidity that led them into the banking scandal in the first place has not been erased from their corporate culture and thinking. This is a PR nightmare of their own creation.

    Hazard and Shore have, like so many private citizens before them, been talked into investing in BoA. Like those who came before, they will learn the hard way.

    The prosecution of Mr. Olson has driven home the point he was originally trying to make … isn’t funny how the big boys never seem to see this until it’s too late?

  21. “But, comparing it to Texas is inspired, that’s going to be my new line. Thanks!”

    Great! I thought you’d be flattered by the comparison and your take on Florida is correct, but the housing was cheap.

  22. Having lived in Texas, I’m not sure why anyone would think the comparison is flattering unless they’re talking about Austin. I’ve spent a lot of time in Austin. I’ve spent a lot of time in San Diego. San Diego is no Austin. In its defense though, San Diego is no L.A.

  23. Gene,

    Last night we had a true Texan speak…. It was Wendy Davis and she stood up for her beliefs…. That is the type of Texan I used to work with in the legislature…. Did it because she thought she was right….

  24. Now someone needs to come along and say that women’s healthcare issues don’t matter. Really? They seem to get people more fired up than anything else.

  25. SwM,

    What fun to watch … thank you!

    “It was online and in social media where the story really took off, and even played out.”

  26. SwM,

    I suspect we’re going to be seeing some new tactics using social media as women learn to diss and dismiss the corporate media … I’ve already gotten a couple emails from PP about it.

  27. Blouise, My daughter had friends in the gallery so we were getting reports. Wish we had been there but she is at home studying for the bar.

  28. nick, No, but maybe you can carry a concealed weapon to the exam. lol It does have lots of oil and gas, though. She is not taking the Texas bar.

  29. nick, She won’t be working here but she does identify Texan and uses y’all a lot. She went to Camp Longhorn.

  30. Corporate “property” is key here. Emptywheel writes about this today: “That is, the actual law allows retention of information for up to 72 hours (presumably to process, which is moot anyway, since they’re actually keeping this data 5 years), unless the court or the Attorney General says it must be kept longer because it pertains to threat of death of serious bodily harm.

    But in the minimization standards themselves, here’s how that reads.

    A communication identified as a domestic communication will be promptly destroyed upon recognition unless the Director (or Acting Director) of NSA specifically determines, in writing, that:

    the communication contains information pertaining to a threat of serious harm to life or property. [my emphasis]

    In plain language, the law seems to be about saving human lives. But in paragraphs marked Secret, the government has redefined threat of death or “serious bodily harm to any person” as “serious harm to life or property.”
    – See more at: http://www.emptywheel.net/2013/06/26/fisa-amendments-act-minimization-preventing-serious-harm-to-corporate-persons/#sthash.aBICqwEZ.dpuf

    There is a connection.

  31. SWM, I never got used to hearing “y’all” from my sister. Myself and some of her high school classmates had some much needed laughs about that @ her funeral. She went to Mount St. Joseph’s Academy in West Hartford, Ct. It’s a million miles from y’all country. I’m sure your SWM classmates are a bit surprised by your daughter’s twang. I’m sure you know better than I, just reminding them of Molly Ivins, Ann Richards, etc. I love accents. Some of my American favs are Philly[Phiwwe], Maine, New Orleans, and Gophers.

  32. nick, She does not have a twang but she does say y’all all the time. Neither of my children have accents. I guess it is because they were raised by yankees. People in New Orleans and Philly do have interesting accents but I don’t like that gopher accent although some of my best friends are from dalut and da range. lol My upstairs air conditioning is out and the repairman is finally here.

  33. I once saw a plague that read DON’T steal from the government! they hate competition…. guess that now gets changed to.. Dont talk about the government they hate being wrong!!!

  34. More on the TX legislature

    http://themoderatevoice.com/183478/texas-legislature-changes-timestamps-on-sb5-votes/

    The article has screen grabs of the vote showing several votes happened after midnight. Then that screen disappeared. When it came back up, the votes all happened before midnight. Deliberate manipulation. Did they really think that no one would notice?

    Rick Perry’s response, as their 500th death sentence was carried out,

    http://www.nbcphiladelphia.com/news/politics/Gov-Rick-Perry-Calls-for-Second-Special-Session-of-Texas-Legislature-213208791.html

    In an unsurprising move, Texas Gov. Rick Perry is calling a second special session of the Texas Legislature.

    The second special session will start July 1 at 2 p.m. and will run for no more than 30 days.

    The special session will consider only the following legislative issues:

    Legislation relating to the regulation of abortion procedures, providers and facilities.
    Legislation relating to the funding of transportation infrastructure projects.
    Legislation relating to establishing a mandatory sentence of life with parole for a capital felony committed by a 17-year-old offender.

    Those issues are the same three that were left unresolved after the first special session.

    “I am calling the Legislature back into session because too much important work remains undone for the people of Texas. Through their duly elected representatives, the citizens of our state have made crystal clear their priorities for our great state. TEXANS VALUE LIFE AND WANT TO PROTECT WOMEN AND THE UNBORN. [emphasis added] Texans want a transportation system that keeps them moving. Texans want a court system that is fair and just. We will not allow the breakdown of decorum and decency to prevent us from doing what the people of this state hired us to do,” Perry said in a statement.

  35. raff, you’re assuming again raff. gotta watch it. you assumption: tx politicians can think and/or they can read [the constitution],

  36. More seriously, there have been a large of laws passed in the states that draconian. I think it’s a deliberate move to get Roe v Wade overturned.

  37. Let me try again.

    More seriously, there have been a large number of draconian laws passed by state legislatures. I think it’s a deliberate move to get the question before the Supremes to get Roe v Wade overturned.

    Didn’t expect an upset stomach to affect my brain and fingers. Maybe I”ll go for a good night’s sleep.

  38. I have increasing objected to all the rules that surround a trial… those include rules about the jurors.

    #1 a defendant should be allowed to make any kind of defense they wish … limited only by time. they should be allowed any witnesses they wish.

    #2 the jury should be selected with a very minimum of badering and challenges. the jury shall represent a random sampling of peers. The prosecution and defense can say anything they want to the jury. The jury may make findings that the prosecution was over-zealous.

    #3 the prosecutor must reveal all evidence they have uncovered before the trial. or else the trial is over and the defendant is innocent.

    #4 the prosecution should be allowed any witnesses they wish, and any evidence they wish.

    #5 trials tainted by delayed justice or illegal collection of evidence shall be declared complete and the defendant declared innocent.

    #6 Any evidence that plea bargaining was used to ramrod an innocent person or overcharge a guilty person shall result in release of the defendant and censuring of the prosecutor.

    99guspuppet

  39. This graffiti artist can no more claim “free speech” as a defense than any other graffiti artist. Creating graffiti across town from a bank or in front of a bank is treated the same.

    Yes, the damage claim is outrageous but being prevented from claiming free speech isn’t despite how much we love to hate the rich

  40. Bernard,

    I bet if you were charged with murder and denied the ability to assert self-defense, you’d think it was pretty outrageous. Never mind that BoA doesn’t own the sidewalk.

  41. Every Bank Of America deserves a chalk sidewalk flower and FREE SPEECH written by preferably 6 year olds.

  42. I wonder if this item could be considered a Destructive Device and therefore illegal to possess?

    Chalk Contraband

  43. In order to subvert established regimes, it isn’t sufficient or even necessary to have regimented legions of blackshirts (a la Golden Dawn) taking control of the streets, nor is it enough to have the support of a substantial portion of the armed forces and the police. You need to subvert mechanisms of control and in particular the executive, legislative and judiciary, so that an overall semblance of business-as-usual can be set up whilst an authoritarian culture is imposed on the citizenry.

    Since capitalism no longer felt the need to behave itself following the dissolution of the Socialist Bloc in 1989, the Corporate-Intelligence complex has spent a vast amount of money buying the federal judicial system from top to bottom; the Senate and House were the easiest to corrupt and the Bush family-and-friends have had to concentrate the majority of their time and effort in stacking the federal justice system, with the results you see. Pretty soon the dismal spinelessness of Alberto Gonzales and Eric Holder in the Justice Department are going to be replicated up and down the judiciary…

  44. Disgraceful. I am ashamed for my city that we have a judge with such contempt for the Constitution.
    Also glad I closed my BofA accounts.

  45. “Get angry. The Machinery of Justice will not serve you here – it is slow and cold, and it is theirs, hardware and soft-. Only the little people suffer at the hands of Justice; the creatures of power slide out from under with a wink and a grin. If you want justice, you will have to claw it from them.”

    – Richard K. Morgan, from the Takeshi Kovacs trilogy

  46. This DA is nothing more than a freakin’ shill for Bank of America and should be tossed headlong into the Pacific Ocean by a mob of angry taxpayers.

  47. “I am also surprised that Bank of America (which avoided charges of its own officials in financial scandals) did not reign in its security contractor and state that they do not ask for charges in the case.”
    Please,this is an all too common mistake —Correct word is REIN,not reign.

  48. The San Diego Mayor is making it a big deal about this wasting tax payers money. The DA is claiming they prosecute all graffiti regardless of who the vandals and victims are. Local radio talk show hosts are looking for a 8 year old hopscotch graffiti artist to be a test case.

  49. Howdy this is somewhat of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code
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