Sunday, December 8, 2013

Trial Preparation

Mark and Ann did trial prep at St Stevens dining room (basement). Present were Paki, Eve, Beth, Gail, and me. Matt, Carmen, Palina are on the way from NYC. Debra Sweet will be in tomorrow to testify, and Kathy Kelly is in ?Falls Church for an engagement Tuesday. Martha Hennesey is in transit. Those are the only names I caught. Art and Colleen are in residence. NYC just arrived. Mark's advice: look at the judge when you answer, your voice is you tool don't drone, have notes but don't stare at the paper, and keep track of where you are, look alert and know the program, don't interrupt the judge or others because the recorder can't get it and your great thought won't get in the record, know your roles. Ann added, while playing DA, It's a general intent violation. So possible aid and abet may be in the cards. The jumpsuit itself may be a "device", not sure if that means a jumpsuit is a sign.

MORNING== dont want to sleep
Gail is doing cross examination of prosecution witnesses. I think that she has a good opportunity to get new informataion from the police. Things we don't know about procedure and practice, their training (this is a specialized crime), how they see the elements of the crime, how they decided whom to arrest. [If you saw a group of teenagers on a corner, and one was drinking from an open container, how would you decide whether to arrest the one vs all of them? As it applies in this case, how would you decide whether to arrest the offender vs establish a perimeter?]]

Midnight between Monday and Tuesday

We lost today. We got a new judge because the prior judge could not do a two day trial. It turned out we only needed one day anyway. My eyes are starting to water, it's late, no glasses, people are sleeping need to be quite, so more later. Not that much now. Except that people are learning and of course we won't stop, so we can only win. We all got a good idea as to the facts and what at least a good theory would be. Not quite able to extract enough admissions from the prosecution witnesses, and did not frame the issues clearly enough for the judge to "get", but we will. There is an appeal being considered, as another chance to practice, and get a transcript to see what we failed to do. So there will be a lot of detail within six weeks.

Here is the first draft of the basis for appeal
Here is the second.

Thursday, October 31, 2013

Demonstrations at the Supreme Court

Judge Beryl A. Howell commenting in the recent Hodge decision regarding demonstrating at the Supreme Court, recounting the history of the statute, and the related one at the Capitol:
The panel concluded that “it is difficult to imagine a statute which could more plainly violate the principle that ‘First Amendment freedoms need breathing space to survive[and] government may regulate in the area only with narrow specificity.’”

And later he said...
The Circuit pointed out that the three judge panel in Jeannette Rankin Brigade II, 342 F. Supp. at 585, had “unequivocally stated, ‘[the] desire of Congress, if such there be, to function in the ‘serenity’ of a ‘park like setting’ is fundamentally at odds with the principles of the First Amendment.’”

and ...
an interest in ‘the glorification of a form of government through visual enhancement of its public buildings’ can no more justify an absolute prohibition of free expression on the Supreme Court grounds than on the grounds of the United States Capitol.” Id. (no citation provided). The Circuit further explained that: The sight of a sole picketer may indeed mar an otherwise pristine morning or perfectly centered snapshot. However, it is just that annoyance - if such be the case- that may cause bystanders or passerby to stop and take notice, to become aware of an issue, to formulate a response to a companion. This awareness and interchange is, in part, precisely what the First Amendment is designed to protect.

and ...
Indeed, finding that “[a] total ban on that conduct is no more necessary for the maintenance of peace and tranquility on the public sidewalks surrounding the building than on any other sidewalks in the city[,]”

and ...
The plaza is “open to the public 24 hours a day, except under special circumstances when it is closed by the Marshal,” and“[t]he public is free to enter and leave the Supreme Court plaza at all hours.”

and ...
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

and ...
Nonetheless, “[n]othing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 799 - 800 (1985). Acknowledging that the government, “‘no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,’” id. at 800 (quoting Greer v. Spock , 424 U.S. 828, 836 (1976)), the Supreme Court “has adopted a forum analysis as a means of determining when the Government’ s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes[,]” id. Consequently, the defendants urge the Court to conduct a forum analysis of the Supreme Court plaza as the threshold issue in evaluating the constitutionality of the statute, and to find “that the Supreme Court plaza is a nonpublic forum under First Amendment analysis.” ... Any restriction based on the content of speech in a public forum “Must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.”

Sunday, August 18, 2013

Balancing and handguns (Heller v DC 2008)

The second amendment is protected more vigorously than the first amendment.

Justice Breyer writes, in his book Making Our democracy Work, pg 167:
... put in terms of constitutionality, the proportionality question is the following: Does the handgun restriction disproportionately interfere with the values that underlie the Second Amendmment? This question encompasses several subsidiary questions: To what extent does the restriction interfere with the protected interest? To what extent does it further a compelling interest? Are there superior, less restrictive ways to accomplish the statue's important competing interest? The answers to the subsidiary questions help answer the ultimate question: Does the statue disproportionately restrict the value or interest that the Constitution protects? The Court has frequently asked these kinds of questions, sometimes using different language, where similar constitutional conflicts - say between free speech and privacy - are present.

Friday, August 2, 2013

White House Vigil for the ERA

84-5271 746 F.2d 1518 United States Court of Appeals, District of Columbia Circuit.

Here is the sentence that justifies the "Center Portion" regulation 36 CFR 7.96 (g)(5)(vii):

"The government's interest in preserving a relatively unobstructed view of the White House
for tourists and passersby constitutes a legitimate aesthetic goal
which is not outweighed by the insubstantial infringement
on the demonstrators' ability to engage in expressive activities."

Stare Decisis can be invoked to uphold a decision one would have decided differently.
It should not be invoked when one believes that the original decision is unsound.
1. Stare Decisis does not amend the Constitution.
2. A constitutional issue is at stake.
3. The public has not relied on the decision. The public has ignored it.
4. The White House Vigil (WHV) changed the previous state. Overturning WHV restores it.
While it is true that the demonstrations will continue into the foreseeable future, so that the court may overrule WHV at its leisure, in the meantime the spectacle of peaceful demonstrations being cleared from in front of the White House will continue to damage the reputation of the US.

The 7.96 (g)(5)(vii) regulation is a time place manner exercise of police power.
Police power is used to protect health, safety, morals, and good order.

Here are some reasons that the (g)(5)(vii) "Center Portion" regulation was invalid, ab initio:
01. (g)(5)(vii) is not related to the interest; it does not preserve the "unobstructed view"
For what spot does (g)(5)(vii) serve to preserve the view substantially unobstructed?
Not for most of Lafayette Park. Demonstrators can stand there with signs of any size, anywhere.
Most photos from Lafayette Park show a White House already obscured by trees and monuments.
Vans are larger than signs. Traffic was not stopped in order to preserve "an unobstructed view".
Now that traffic has been stopped on Pennsylvania Avenue, demonstrations have moved into the street. This frustrates any possible beneficial impact of (g)(5)(vii) upon Lafayette Park.
Do signs obstruct substantially more of the White House than the demonstrators themselves do?
If there are 90 demonstrators, is anything accomplished by having the middle 30 walk in circles?
Was the idea to protect the view of the White House for tourists who are on the sidewalk?
02. The "government interest" is not the "public interest".
The comments published in the Federal Register are about the blight in Lafayette Park.
See Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 at paragraph 3 here.
Some of the fifteen comments mentioned the unattended signs in the Park.
Here is a representative sample from the Federal Register
Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they generally receive ... as many as four or five oral comments each day about the visual blight in Lafayette Park. Complaints noted by the officers include the fact that large signs interfere with the view of the White House, prevent picture taking and, together with the ever-present structures, generally ruin the aesthetic quality of Lafayette Park.
The White House sidewalk is not mentioned in the Federal Register.
03. Some demonstrators are tourists. Should one try to draw a line?
The definition of a demonstration is an assembly that attracts passersby. (g)(1)(i)
What if the passersby want to join the demonstration? If a tourist in the "Center Portion" has a sign "Hi mom", and wants to join a demonstration, what does he do with his sign?
He cannot hold the sign; he cannot put the sign down; he cannot leave it unattended.
If the tourist looks at the White House as he holds the sign, is he ok?
Are out-of-towners exempt, since (g)(5)(vii) is intended to protect their rights to the view.
The regulation is a prior restraint: a crime is recognized before anyone's view has been impaired.
04. The infringement is not insubstantial.
Many carefully planned events have been broken up to satisfy the speculated desires of non-existent passersby; events where hundreds of people have participated, and thousands of dollars have been paid-out, and many people have come a long way, staying in hotels.
The regulation has needlessly created a high-crime area.
It is hard to have people milling about, and also have a speakers program.
The "no signs" rule means that most pictures of the event will not contain signs.
Nor is "insubstantial" the standard where the regulation does not serve the interest.
There are less restrictive alternatives.
05. Strict Scrutiny
The fact that the Parks Service prohibits all signs does not thereby make the regulation "content neutral". Virtually all the demonstrations that take place in front of the White House are critical of some government policy, and this regulation places most of its burden on that group. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration.
And that demonstration was allowed to proceed unchallenged.
You don't see Bechtel and Blackwater demonstrating in front of the White House.
Give the public better access, and you will have an unobstructed view of the White House.
06. The Grayned Time Place and Manner rule is incorrectly applied
The Grayned compatibile use test says the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."
Demonstrations are normal activity and so they cannot be incompatible with normal activity.
On what basis does (g)(5)(vii) grant exclusive use of the airspace to tourists?
If casual use by passersby is incompatible with large demonstrations, the permit system provides a reasonable method of sharing.
No evidence has been submitted that small demonstrations conflict with tourism.
07. A substantive violation of the clear text of the First Amendment
Remember that these amendments were added to the Constitution as assurances to people who had revolted against an unresponsive government. Assurances were given that the new government could be trusted with limited powers; given to revolutionaries who had told the world in the Declaration: "Our repeated Petitions have been answered only by repeated injury."
A very modest interpretation of the First Amendment would hold that the people may sometimes assemble to petition the government for the redress of grievances at the home of the Executive Branch in a peaceful manner as they choose, without being arrested.
The (g) regulations take words directly from the first amendment, and clearly and audaciously aim at limiting protected activity, rather than aiming at achieving a claimed interest.
Why is "obstruction of the tourist's view" not the alleged offense, based on the commerce clause?
Is the interest of a passerby a passing interest, rather than a compelling interest?
Standing still also has a meaning, which is frustrated by the requirement to move along.
Demonstrations are more important to the country than a reviewing stand, or some trees, or monuments to dead fighters, or traffic on Pennsylvania avenue, yet those were thought to be more important than an "unobstructed view" of the White House.
The Constitution protects having demonstrations in front of the White House.
The Constitution does not protect having a White House, or a having view of a White House.
A "legitimate aesthetic goal" is not the standard. Nor is deference to regulators.
08. All men are equal
If the National Parks Service wished to move the Wrought Iron Fence out to the curb in the "Center Portion" to "protect the view", it would be hard to find grounds to object, besides spite.
But once the fence is in place, all should have equal access to the remaining public space, first-come first-served, unless some other even-handed allocation method works better.
Jamison v. Texas: "one who is rightfully on a street, which the state has left open to the public, carries with him there as elsewhere the constitutional right to express his views in an orderly fashion."
09. Bad optics. Not the only goal, or an important goal, of even the Executive Branch
It may be a legitimate esthetic goal of the gardeners, but is it a compelling goal of the 'government'? Has even the Executive Branch weighed the various interests of appearance of democracy vs. appearance of a photo spot, much less has the court? The Supreme Court is eager to preserve on its plaza certain appearances which are, at least, related to its governmental function. How can the Executive Branch dare to even make the claim that its predominant interest is in the superficial? And if they do make that claim, should the Judiciary uphold it as true?
That aesthetics may be a basis for regulations does not make legal all such regulations.
Why is it that this view is the only one the government has asserted a right to protect?.
Isn't there a compelling interest that the White House have an unobstructed view of the signs?
10. Most demonstrations do not substantially obstruct the view of the White House.
The "Center Portion" regulation prohibits a single demonstrator from standing while holding a single sign, of any size. This does not meet the requirement of Grayned, cited in Perry, to be "narrowly tailored to achieve a significant interest" in that (Nomad) "it burdens more speech than is necessary".

In Summary
The original decision erred in the following ways.
01. The asserted interest hides a political interest, which it accomplishes.
02. The regulation does not accomplish the asserted interest
03. The asserted interest could be accomplished without restricting assembly
04. The interest asserted is not the public's interest.
05. The purpose of the First Amendment is to protect activity from the public's interest
06. Demonstrators have as much right to the space as tourists
07. The infringement is not insubstantial
08. The court did not apply the proper level of scrutiny
09. The activity is normal to the area, so Grayned does not apply
10. The gardener's interest is not compelling

Wednesday, July 31, 2013

Stare Decisis

Stare Decisis does not have the same effect as a Constitutional Amendment. While we can not ignore history, neither can we ignore the clear text of the Constitution. The text creates principled high points on which the rest of the law is hung. These high points are connected by strands of logic that create a kind of fabric ceiling. And very soon after our founders framed the Constitution, they built three walls against government disfavor: protecting religious belief, protecting free expression, and protecting the right to object.

Prior restraint of assembly

Judge Brandeis, in his dissenting concurrence in WHITNEY V. CALIFORNIA, says "The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the dynamic quality of crime."

The word "mere" indicates a "prior restraint" analysis: the recognition of a crime before it happens. Prior restraint is the "ounce of prevention" argument advanced by counsel in Tinker v Des Moines, but not persuasively.

Organization for a Better Austin is a case where restraint on the distribution of handbills was struck down. Prior restraint is a recognition of a harm "too soon", before "it" has occurred, and where the occurrence of the harm is uncertain or can be minimized by other means, and where remedies are possible if harm should occur.

Sunday, July 14, 2013

Alternative channels and
what is normal

From Mary Grace, Judge Marshall, 461 U.S. 171 (103 S.Ct. 1702, 75 L.Ed.2d 736) concur in part.
When a citizen is "in a place where [he] has every right to be," Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J., joined by Warren, C.J., and Douglas, J.), he cannot be denied the opportunity to express his views simply because the government has not chosen to designate the area as a forum for public discussion. While the right to conduct expressive activities in such areas as streets, parks, and sidewalks is reinforced by their traditional use for purposes of assembly, Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J., joined by Black, J.), that right ultimately rests on the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion." Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869 (1943) (emphasis added). Every citizen lawfully present in a public place has a right to engage in peaceable and orderly expression that is not incompatible with the primary activity of the place in question, whether that place is a school,1 a library,2 a private lunch counter,3 the grounds of a statehouse,4 the grounds of the United States Capitol,5 a bus terminal,6 an airport,7 or a welfare center.8 As we stated in Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972), "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).

One question this raises is "is it normal to protest outside the White House?"
White House Vigil implies that this is not normal.

Thursday, July 4, 2013

Analysis of the June 26th arrest

take 2.1, with footnotes
== General References
Google Maps view of the White House Sidewalk and and of the Center Zone
== Annotations, with @timestamp
@00:30 36CFR7.96 as of 2010, formatted. Subsection (g.5.vii) is the Center Zone text
@01:45 09/11 didn't change everything: 36CFR7.96. Was it too quaint?
@03:00 See the June 26th video @01:00 for the announcement that the sidewalk was closed.
@04:30 People act surprised on the June 26 video. Something happening at the curb?
@05:30 Why should a judge not require somewhat reliable evidence?
@07:15 Or cordon off to collect evidence, or aid a victim...
@08:00 Photo after closure of sidewalk
@08:10 The Mary Grace exception
@11:00 Here is the deal with the First Amendment. Why all that in one amendment anyway?
@13:00 What is a traditional public forum?
@13:45 The White House sidewalk is a traditional public forum.
@18:40 Example of discriminatory enforcement, against protected speech.
@19:50 Build a viewing platform, rather than trample on the First Amendment.
@21:30 regulations aimed at self supporting signs.
@22:00 Regulating t-shirts: Fed Register, Volume 75. page 64149 and ff
@25:00 History of pointless enforcement
@25:45 Strict scrutiny

take 1

@08:50 Strict scrutiny of restrictions to the content of speech (press), and as to time place and manner for speech and assembly.
@13:00 Demonstrations provide valuable feedback.
@14:15 A deference to be given to police, like referees.
@14:45 But certain places are assumed to be ok, are, traditionally, public forums.
@20:00 First come, first served. If the demonstrator is facing the fountain, he's ok.
@21:00 Find a solution that satisfies both demonstrator and tourist, or try to.

White House, June 26th 2013

Tuesday, January 8, 2013

Lafayette Park

If it is so critical that tourists have an unobstructed view of the gardeners work, why didn't you leave the reviewing stand up? That way everybody could be accommodated.