A.G. Gancarski
The rains have been hitting this writer’s portion of Duval County all day, dousing the usual neighborhood fireworks wars. This is symbolically fitting, as the Volokh Conspiracy blog at the Washington Post likewise dumped cold water all over a recent fevered ruling of Judge Mark Mahon, which set strict limits on permissible speech at the Duval County Courthouse, as “clearly unconstitutional.”
To recap, this latest Great Moment in Duval County Jurisprudence is a reaction to Photography Is Not a Crime attempting to document a trial involving one of its members.
A North Florida judge who has been doing all he can to keep PINAC from recording the trial of one of our correspondents – ignoring a 1979 state supreme court ruling that allows news cameras in the courtroom – has issued an order forbidding PINAC from recording anywhere outside the Jacksonville courthouse, including public sidewalks, claiming it would pose a “security threat to the Courthouse and a threat to the integrityof the judicial system.”
The author of the WaPo piece, law professor Eugene Volokh, calls attention to several provisions of the order, including the definition of “perimeter sidewalks” around the Courthouse and the State Attorney’s Office as part of the property. Many of the examples he cites are prototypical examples of legal concepts that somehow fly in Duval County but would be lampooned in other areas of the country, such as:
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the Court or any of its judges (e.g., claiming the Courts, Court personnel or judges are ‘corrupt,’ biased, dishonest, partial, or prejudiced), thereby tending to influence individuals appearing before the Courts, including jurors, witnesses, and litigants, shall be prohibited on the Duval County Courthouse grounds….”
State Attorney Angela Corey has been a lightning rod for criticism from groups like the Jacksonville Progressive Coalition in recent years, and rulings like this preclude visible protest from these and other groups.
Volokh found this one notable as well:
Regarding violators of these new precepts, “the Jacksonville Sheriff’s Office is hereby DIRECTED to arrest and charge the offending individual with indirect criminal contempt of Court (and any other charges deemed appropriate) and transport such person to the Duval County Jail for identification and processing…”
Obviously, Eugene ain’t never made it down here to Duval. Because this is how the game historically is played.
Volokh points out that “all public sidewalks near the courthouse are “traditional public fora” (seeUnited States v. Grace (1983)) in which content-based speech restrictions — and, even more clearly, viewpoint-based speech restrictions such as the one in item 3 — are unconstitutional.”
Here’s another section that shows that Volokh just doesn’t get how it works in these here parts.
But whatever courts might say about this sort of specific call for juries to disregard judges’ instructions, this can’t be extended, I think, to general condemnation of the character of judges — public officials (in Florida, elected officials) who must always be subject to public scrutiny and criticism. Nor is the judge’s order justified by the argument that “reasonable restrictions are necessary to limit expressive conduct, speech, or dissemination of materials, tending to influence individuals as they enter the Courthouse, which serves the reasonable purpose of protecting the actual or perceived integrity of judicial impartiality and independence of the courts.” Government officials can’t protect the “perceived integrity” of their “impartiality and independence” by suppressing speech that accuses them of not being impartial and independent.
Volokh also takes issue with the restrictions against videotaping, which he deems as “likely too broad to be constitutional, despite the judge’s security concerns. Among other things, judge’s faces and cars cannot, I think, be treated as secret matters that may not be photographed, even despite the potential risk that the public availability of this information creates.”
Perhaps judges, in the future, can wear lucha masks. Or dress up cosplay style. Such masquerades certainly would be delightful theater, and would degrade the reliability of the videotaping.
Here’s another fun quote:
Finally, here’s part of the judge’s rationale for the order:
[T]he proper procedure for challenging a court’s decision is to file an appeal with the appropriate appellate court. Shouting out on the Courthouse grounds that the Court and judges are “corrupt” during business hours while people are entering the Courthouse is entirely inappropriate and disruptive and is analogous to falsely shouting “fire” in a crowded theater ….
Completely analogous! Except that it’s not a proven false statement of fact, but either an expression of opinion or a statement of fact as to which there has been no trial to determine its falsity. And it’s not likely to immediately start a stampede in which people might be trampled to death. And it criticizes a government official, with the very official being criticized trying to restrict it. Other than that, they are totally the same thing.
Jacksonville’s back in the national news, baby! Happy Independence Day. Jacksonville public officials, yet again, are the gift that keeps on giving.
For those interested in more on this, check out a Thursday discussion Melissa Ross and I had on her radio show, First Coast Connect.
