"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, November 18, 2015

The Anthony Pacherille story: Part 4 - freedom to protest in front of a public official's home

I posted three reports so far about the Anthony Pacherille's story where Judge Brian Burns, of Otsego County Court, New York, presiding over a case of a teenager charged with a crime, disliked the teenager's father's letter asking for leniency at sentencing, because the letter asked for compassion and mentioned that the judge had a teenage son (a publicly known fact through the judge's appearance with his wife and three teenage children, a girl and two boys, at his own swearing-in ceremony several months prior to the date of the letter).

Judge Burns felt that his, his children's and his family's safety was threatened with the defendant's father's letter, but did not recuse and instead denied the child the youthful offender's status that the child was entitled to and sent the mentally ill child to a maximum security adult prison for 11 years.

The father wanted to demonstrate in front of the judge's home, the local ordinance required to put in the actual address where the demonstration will be held, in order to apply for a permit.

The father went to the judge's residence and knocked on the door to verify whether it was the judge's address. The judge's wife answered the door, confirmed it was the judge's residence and told the father to leave.  The father apologized and left.

For that, the father was charged, on the judge's complaint, with harassment in criminal court.  The criminal proceeding was dismissed on 1st Amendment free speech grounds, but the father, as I understand, was not able to hold his planned demonstration in front of Judge Burns' home.

Recently, because of a protest in front of a State Senator's residence in the town of West Depford, New Jersey.

The town of West Depford tried to introduce an ordinance that would prohibit demonstrations other than 100 feet away from a residence, with the following restrictions:

  • not more than 10 people;
  • once every 2 weeks,
and some people protested introduction of such an ordinance as unconstitutional, see comments to the interlinked article, one of such comments I post here:

The restriction of "no more than 10 people once every 2 weeks" is clearly unconstitutional as violative of protesters' 1st Amendment right to free speech and association, and it is a matter of time when a lawsuit challenging it will be filed, but that is not the point as applied to Tony Pacherille's case.

In Tony Pacherille's case, there is no indication that the City of Oneonta had such an ordinance, and without such an ordinance, the local police had no right to prohibit a demonstration by Tony Pacherille outside of Judge Burns' home.

See also how a demonstration outside a public official's residence was handled in California.

Here is a report with an included video of a protest outside the residence of the City of Los Angeles this past summer.  The police controlled the crowd when the mayor tried to sneak out of the residence through the back door and was confronted by the demonstrators, but the demonstration was not dispersed by the police and was allowed to proceed.

In this country, there are cases decided by the U.S. Supreme Court dedicated to the 1st Amendment freedom of speech and association that will make your blood boil.

They seem to be grossly unfair to the victims of offensive expression.

Yet, the U.S. Supreme Court doggedly supported freedom of speech over hurt feelings, even in situations where the speech was grossly, extremely offensive.  The U.S. Supreme Court's message was always - that those who were offended should simply look the other way, because the core of speech is protected content, political expression.

With the determination to protect the constitutional freedom of speech and assembly, the U.S. Supreme Court:

  1. disregarded the feelings of Holocaust survivors and their families by allowing a march of "national socialists" (fascists) through their town;
  2. disregarded the feelings of African Americans as to the history of lynching by repeatedly striking down criminal statutes for cross-burning in front of residences of African Americans, see here and here;
  3. disregarded the feelings of mourners of fallen soldiers who died protecting this country who were confronted with hateful speech right at their loved one's funerals.

If SUCH feelings under SUCH circumstances were disregarded on 1st Amendment grounds, the mere displeasure of a judge and his wife as to a picket on a public sidewalk in front of the judge's residence, where there were no safety issues involved whatsoever (Tony Pacherille verified the address, Judge Burns' wife told him to leave, he left, the Chief of Police called, Tony Pacherille said he will not come TO the residence again, meaning on the judge's property).  

Tony Pacherille could still walk the public street where the Judge's house was located.  As a taxpayer, Tony Pacherille was paying for upkeep of that street and was entitled to walk it.

There is nothing more protected as political protest in front of a residence of a public official.  

To any reasonable observer, it would be clear that Holocaust survivors would feel threatened by a march of fascists through their town.

To any reasonable observer, it would be clear that an African American family would be more than alarmed and threatened by a burning cross on their lawn - and, by the way, their lawn was PRIVATE property, so a trespass was involved, too.

Here, Tony Pacherille planned a peaceful picketing outside a judge's residence on a public sidewalk.

If there are no safety issues involved - and in Tony Pacherille's case there were none, as the criminal court subsequently concluded - such a protest should have been allowed.

So, restrictions imposed on Tony Pacherille's right to demonstrate in front of Judge Burns' home were clearly unconstitutional, and imposing such restrictions was abuse of power - both on the side of the police and city authorities, and on behalf of Judge Burns who sought such restrictions, knowing (as a judge who was sworn to protect the U.S. Constitution) that such restrictions are in violation of the 1st Amendment right to free speech and free association.

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