Mac Stipanovich: Who’s afraid of an affray?

One of the first principles new law students learn is that bad facts make bad law.

It means that judges straining to seek justice in cases involving appalling facts sometimes establish precedents that will produce bad outcomes, given different facts in subsequent cases.

But bad laws made by bad facts in courtrooms are small potatoes compared to bad laws made by good politics in the Legislature.

Florida currently has a raft load of serious problems, many more (and much more serious) than usual.

COVID-19 interdiction and vaccination rollout. An unemployment insurance meltdown. An economy under extraordinary stress. A budget crisis.

So, what is top-of-mind for Republicans in the upcoming Legislative Session, other than trying to mess with social media platforms for pulling the plug on Donald Trump?

“Combating Public Disorder” — the title of House Bill 1.

That this legislation would be forthcoming was announced months ago.

It is an artifact of the rioting around the country last year and the fraught run-up to the presidential election. While it is not totally a solution in search of a problem — there are some worthy aspects of it — it is reminiscent of other past political statements enshrined in law, like the banning of sanctuary cities in Florida (of which there were none) when the Trump stoked fear of illegal immigration was at its height.

The general idea of HB 1 and its Senate companion is to get tough on the kind of anarchic civil unrest exemplified by rioting in Minneapolis, Kenosha, Seattle and Portland.

No similar breakdown in law and order happened anywhere in Florida, but fear cares naught for facts, and a vote is a vote is a vote, to paraphrase Gertrude Stein.

But let us put aside the red-meat politics of HB 1 and focus on the bill’s actual language.

Reading it, I am reminded of the “Infinite Monkey Theorem,” which states that a monkey banging away on a typewriter would eventually write the complete works of Shakespeare given an infinite amount of time.

This legislation could have been written by a monkey, albeit a monkey on a tight schedule.

For this, I do not blame the legislative bill drafting staff, who are competent professionals. I blame their masters, whose eyes are on the cross tabs in the polls rather than on the law’s details.

Consider just three characteristic bits of monkey business in the 60-page bill, beginning with my personal favorite: affray.

The bill states that “A person who, by mutual consent, engages with another in fighting in a public place to the terror of the people commits an affray … ” which is a first-degree misdemeanor.

Picture 20 pro-life protesters holding signs and waving at passing traffic in front of the state Capitol who are confronted by three pro-choice zealots.

An argument between two women ensues. Tempers flare. Punches are thrown. Maybe there is some hair pulling.

Has there been an affray? Not unless there was “mutual consent” and the fighting was done “to the terror of the people.” What does that mean? What if one of the combatants didn’t want to fight but fought in reluctant self-defense? No affray? Assuming both ladies were ready to rumble, how many people affrighted by the affray are necessary? One?

Probably not, since “people” is plural. Will two do? It’s a mystery.

Then there are the bill’s anti-doxxing provisions.

If a man who is a constituent of Rep. X tweets out her private mobile phone number, obtained from a mutual friend, and asks his thousands of Twitter followers to text her and disparage her for voting for HB 1 on final passage, has he published ” … another’s personal identification information with the intent to, or with the intent the information will be used by another to, threaten, intimidate, harass, incite violence, or commit a crime against a person, or place a person in reasonable fear of death or great bodily harm … ” which would be another first-degree misdemeanor?

The answer depends on whether he harassed or intended for others to harass X, harassment being ” … conduct that is intended to cause substantial emotional distress … and serves no legitimate purpose.”

Note that “substantial’ and “legitimate” are doing a lot of heavy lifting here.

But given that X’s private phone number was disseminated, and that there were (arguably) no legitimate purpose served by castigating her for a vote she cannot change, then our man may be taking a ride in the paddy wagon — if X is a person easily undone by criticism and he intended to upset her, unless what he did is “constitutionally protected,” presumably by the First Amendment.

If, on the other hand, X is a regular Margaret Thatcher, tough-as-nails and indifferent to the cavils of the crowd, and our man was just a mean old sod with no expectation of inflicting substantial emotional distress on X. Then, he may walk.

Got all that?

And there is the “defund the police” provision, which is, in fact, a sanctuary-city-type political solution in search of a nonexistent practical problem in Florida. The bill states that if any municipality decides to reduce the “operating budget” of its law enforcement department, any citizen can appeal the decision to the Governor’s office.

I assume this is intended as an intelligence test for any hypothetical Mayor and City Council bent on cutting spending for cops on the street.

Presume that in Year 1, the law enforcement component of a municipal police department’s operational budget is funded at x and that there is — or could be — a community outreach component staffed by civilians funded at y, which is a small fraction of x.

In Year 2, funding for the law enforcement component is reduced, and funding for the community outreach component is increased by the same amount to reflect expansions of its mission, which is actually the kind of redirected spending proponents of “defunding the police” have in mind.

Spending on police on the street has been cut, but the police department operating budget remains intact, so no right to citizen appeal is triggered. Voilà.

The ease with which to game this provision is circumstantial evidence of its unseriousness.

These are just three samples of the farrago of vague, performative, possibly unconstitutional, probably ineffective, and blatantly political provisions contained in this legislation. There are more examples, enough to embarrass a monkey of even middling talent.

But apparently not enough to embarrass Republicans.