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
Okay Bob … now you’ve gone and done it. Another thread lost to the self-absorbed …
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.
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??
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.
see NY Times editorial today
Where Anonymity Breeds Contempt
kay,
Have you read some law review articles about civil contempt?
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
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, youāre only going to encourage Bob. š
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Figures he’d be impervious to the threat of pasta …
Blouise: š (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…)
Bob, Bob, Bob … I Kant understand why you’re doing this to us!!
I wasn’t held in contempt for non payment of judgment. I was held for filing papers in a different federal court.
… but first I gotta buy a mask …
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. š
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.
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….
Bob,Esq.
1, November 30, 2010 at 11:35 am
So Kay,
Tell us about this lawsuit of yours.
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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.
sorry g 5 not g 6
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.
hehehe
Bob, your humor can be as dry as the Gobi. I really dig that about you.
I still don’t understand why Buddha won’t agree to take the case.