Suffolk DA Dan Conley’s office has announced that it will appeal the dismissal of “disturbing a lawful assembly” charges brought against members of the group Veterans for Peace. As you may recall, these dangerous scofflaws engaged in some truly scandalous behavior on Veterans Day:
Members of Veterans for Peace lined up in front of a podium at City Hall Plaza holding antiwar placards, as color guards from Massachusetts military units and JROTC bands from across the state filed into Government Center for a ceremony, sponsored by the American Legion, to honor veterans after the parade. Some protesters wore gags, which they later said symbolized the fact that, while they were permitted to march in the parade, they were prevented from carrying signs opposing the war in Iraq.
Great Scott! They held antiwar placards! Some of them while wearing a gag!! Parents, send the children upstairs!
According to DA Conley’s office, a Boston Municipal Court judge this morning dismissed criminal charges that had been brought against these rabble-rousers. Conley says he’ll appeal — and thank goodness. I mean, God forbid this kind of skullduggery should go unpunished.
Keep fighting the good fight, Dan!
UPDATE: Who knew that “disturbing a lawful assembly” was a crime, anyway? Here’s the statute — General Laws ch. 272, section 40:
Whoever wilfully interrupts or disturbs a school or other assembly of people met for a lawful purpose shall be punished by imprisonment for not more than one month or by a fine of not more than fifty dollars….
Now there’s a criminal statute that almost certainly hasn’t been tested under modern First Amendment doctrine. If Conley follows through with an appeal on this thing, he may well end up getting the statute invalidated.
http://vps28478.inmotionhosting.com/~bluema24/s…
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p>Did you know every time Wal-Mart opens on Sunday it should be fined $50-$200 dollars?
the Sunday closing laws are actually quite complicated. The next section (this one) limits the general Sunday closing section pretty substantially. See this post for a detailed discussion of the Sunday closing laws, and this one for a collection of links to BMG’s unmatched discussion of MA’s absurd blue laws!
That should have been subject to proscution and lengthy imprisonment. Isn’t that right Joe? Glad to see your back. There’s some folks that would like to have a chat.
When is the next opportunity. Something should be done about public officials who high-handedly attempt to trample on the rights of a free citizenry to assemble and voice their grievances. If Conley had been around in 1775 he’d have been fighting for Britain and royalty by the sound of it.
How about we investigate and eliminate this nitwit judge?
a little prosecutorial discretion might have been called for here. These guys were not a threat to anyone, and bringing criminal charges against them (to say nothing of appealing their dismissal) strikes me as a very poor use of the DA’s limited resources.
Beginning legal action against students who regularly engage in threats, violent behavior, and other choices is usually the threat of last resort for many school administrators.
It would appear that, after having made their point, the demonstrators were asked to allow the assembled people to exercise their rights, and they would not do so.
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p>And what is so unreasonable about the statute? Where is the balance?
Do you really want me disrupting your kid’s school play to vent my pet peeve?
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p>David – after the reams of invisible (cyber) ink which have been spilled about the whole Sarah Loy incident – do you really mean you ‘didn’t know’ about this statute?
I had forgotten that the anti-marriage crowd had tried to bring a “disturbing a lawful assembly” charge against Ms. Loy (no charge was ever brought against her, AFAIK). The more important part of that case was that the guy who knocked her down, Larry Cirignano, was in fact charged with (and later acquitted of) assault.
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p>Now there’s a criminal statute that almost certainly hasn’t been tested under modern First Amendment doctrine.
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p>it is essentially a “disturbing the peace” statute. There is no 1st amendment issue, unless government refuses to allow the protesters to protest at some point in time. The protesters do not have a 1st amendment right to exercise a “hecklers’ veto” over a peaceful assembly, which is essentially what they were attempting to do.
Probably the most important US Supreme Court decision on freedom of speech, freedom of assembly and heckler’s veto (which is the issue at hand) in the last 60 years is TERMINIELLO V. CHICAGO, 337 U. S. 1 (1949)
The Chicago Police Dept. did not allow the Nazis to march through the jewish community ( believe it was Cicero)
I don’t really see what that case has to do with heckler’s veto. The guy who was appealing his conviction wasn’t a “heckler” — it was his speech that was alleged to be causing a breach of the peace by riling up a crowd outside the auditorium where he was speaking. On a quick read, the case appears to be what we would today call an overbreadth case — the ordinance as construed by the state courts was so broad as to encompass constitutionally protected speech, so the Court held that conviction under it could not stand.
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p>The Court never reached the question whether the speech at issue in the case was constitutionally protected or not.
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MCRD: I don’t know what case you are referring to, but if you are referring to the Skokie IL case, you should realize that the ACLU defended the AmNazis’ right to march through the city despite the city’s refusal to grant the parade permit, and the threat of the heckler’s veto. And the ACLU was absolutely correct in doing so. Speech can be regulated (you can’t go through the Back Bay at 3AM with a megaphone blasting at 3000 dB) but it cannot be denied. That is the primary precept of the 1st amendment’s speech provision.
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p>David: I seriously do not understand how you can miss the “heckler’s veto” aspect of Terminiello. If Terminiello’s appearance had been inciting his audience to violence, he might very well have been guilty of disturbing the peace. But that wasn’t the case. Terminiello’s mere appearance induced others–those outside of the auditorium–to violence who were protesting Terminiello’s appearance, which is what caused caused Terminiello to be arrested. And that is where the “heckler’s veto” comes in.. If outsiders can determine who can speak and who cannot, that is nothing more than a “heckler’s veto.” The hecklers in the Terminiello case were the ones who were disturbing the peace, and they were the ones who should have been prosecuted for having done so.
But they weren’t. He was, so it was his conviction that was at issue in the case. And it was overturned for reasons having nothing to do with his actual speech, or with what the “hecklers” did in response to it. As I explained above, his conviction was voided because of the state courts’ construction of the ordinance under which he was charged.
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p>In our Veterans for Peace case, in contrast, it is indeed the “hecklers” who were arrested and charged. That’s the difference.
…it was the state courts’ construction of the ordinance in issue that was unconstitutional. That’s what was of interest in the “heckler’s veto” issue. Your complaint, in the post at the top, seemed to be that the relevant MA statute should be unconstitutional, and that was the point that I was addressing. If you did not intend to so imply, please clarify.
and it seems to me that Terminiello (along with more recent overbreadth cases) might well support the argument. The statute almost certainly was drafted decades if not centuries ago, and probably hasn’t been updated since then. If the courts haven’t come up with a limiting construction of it (and I don’t know whether they have), the statute on its face seems likely to encompass speech that is protected. After all, it seems difficult to say that the rather modest conduct implied by the verb “interrupt” (as opposed to the arguably more disruptive “disturb”) would necessarily be outside the realm of the First Amendment. (A month in prison for “interrupting”? Maybe a civil infraction; hardly a criminal one.) And so, under the reasoning of Terminiello and other overbreadth cases, the statute could encompass both protected and non-protected speech, rendering convictions under it suspect.
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p>Note, also, that under overbreadth doctrine, it doesn’t matter whether the particular conduct at issue (such as that engaged in by the veterans here) was protected. What matters is the terms of the statute used to prosecute. Overbreadth is an exception to the usual rules of standing — it allows a party to challenge the facial validity of a statute on First Amendment grounds even though the party’s own conduct might not be protected.
and it seems to me that Terminiello (along with more recent overbreadth cases) might well support the argument
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p>As a good lawyer, I’m sure that you know how to “read between the lines.” The immediate cause for the reversal was something of “overbreadth” but, if you read the last few paragraphs of the majority opinion (and especially Jackson’s dissent) you will certainly understand that “overbreadth” was not the issue.
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p>The statute almost certainly was drafted decades if not centuries ago, and probably hasn’t been updated since then.
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p>This is totally irrelevant to the issue at hand. If the ordinance had been drafted before the ratification of the 14th amendment and the doctrine of incorporation, you might have something of a point. But it was clear on its face–not even limited to “as applied”–that the ordinance was unconstitutional following the adoption of the doctrine of incorporation. I seriously cannot understand why you cannot understand that.
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p>If the courts haven’t come up with a limiting construction of it (and I don’t know whether they have)
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p>But the IL courts had the opportunity to limit the construction of the ordinance in Terminielloand they did not. That should be obvious.
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p>the statute on its face seems likely to encompass speech that is protected
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p>That was not the issue in Terminiello. The issue was time/place/manner restrictions, and conduct. The disruptive conduct was engaged in by persons who opposed Terminiello’s appearance, not by Terminiello. I seriously do not understand why you cannot understand the difference.
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p>Going down a bit
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p>Overbreadth is an exception to the usual rules of standing — it allows a party to challenge the facial validity of a statute on First Amendment grounds even though the party’s own conduct might not be protected.
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p>You apparently do not understand the issue of “standing.” Standing relates to the ability of a (usually civil) litigant to raise an issue. If someone has been charged with a crime, of course he or she has “standing” to raise any issue that he or she wishes in his or her defense. A trial or appellate court may nix the issue, but the defendant has the right, if not the obligation, to raise the issue, at least for the purpose of preserving it for appeal.
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p>I’ll just note that your cited case was a civil case, not a criminal case.
which is specifically about the MA statute, not the IL statute in Terminiello. That largely disposes of your points 2-4, which I think are under the erroneous impression that I’m talking about the IL statute. To the extent that your responses have to do with my views on the MA statute:
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p>point 2: my comment about the age of the MA statute is simply to observe that the statute was likely drafted in an era when First Amendment restrictions were far less stringent, and possibly even before incorporation occurred.
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p>point 3: I know that the IL courts had not limited the IL statute. My point is that the MA courts may have limited the MA statute; I don’t know whether they have or not. Do you?
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p>point 4: again, I disagree with you as to what the point of Terminiello is. Terminiello was charged with a crime; the court reversed his conviction because the ordinance proscribed too much protected speech. What is so complicated about that?
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p>As for your first and last points:
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p>First point: That’s your interpretation, but it’s not mine. Douglas (who wrote the majority opinion) sensibly didn’t want to get into the much stickier question of whether the speech at issue was (unprotected) “fighting words” or (protected) offensive speech. So he took the easier route of invalidating the statute without looking at the content of the speech. The holding of the case, therefore, is that the ordinance as authoritatively construed by the state courts was overly broad, proscribed too much protected speech, and was therefore invalid. As you’re fond of saying, I seriously cannot understand why you cannot understand that.
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p>Last point: fair enough — I was using “standing” loosely, this not being a law review article. But the basic point remains: in the First Amendment area, a litigant (civil or criminal) can win by arguing that a statute proscribes protected speech, even if the litigant’s own speech was not protected. That’s not true in other areas — a criminal defendant who argues that a statute prohibits constitutionally protected conduct (other than First Amendment-protected speech) will lose if his own conduct is not protected.
The group, Veterans for Peace, too were exercising their rights to Free Speech and assembly. They weren’t doing any harm, and they were just simply asserting their rights to express an opposing viewpoint. What’s so wrong about that?