Posted by Eugene Volokh:
Speech to a Courthouse Line:
[1]Newsday reports:
The line leading into First District Court in Hempstead Monday
morning was long and frustrating, but it was the punch line in a
lawyer joke that got two rabble-rousing comedians arrested.
"How do you tell when a lawyer is lying?" Harvey Kash, 69, of
Bethpage, said to Carl Lanzisera, 65, of Huntington, as the queue
wound into the court. "His lips are moving," they said in unison,
completing one of what may be thousands of standard lawyer jokes.
But while that rib and several others on barristers got some
giggles from the crowd, the attorney standing in line about five
people ahead wasn't laughing.
"'Shut up,' the man shouted," Lanzisera said. "'I'm a lawyer.'"
The attorney reported Kash and Lanzisera to court personnel, who
arrested the men and charged them with engaging in disorderly
conduct, a misdemeanor. . . .
Dan Bagnuola, a spokesman for the Nassau courts, said the men were
causing a stir and that their exercise of their First Amendment
rights to free speech was impeding the rights of others at the
court.
"They were being abusive and they were causing a disturbance,"
Bagnuola said. "They were making general comments to the people on
line, referring to them as 'peasants,' and they were causing a
disturbance. And they were asked on several occasions to act in an
orderly manner, not to interfere with the operation of the court."
. . .
Kash said he and Lanzisera were merely saying out loud that the
public was being treated like peons or peasants while attorneys,
who wave their security passes to court officers and don't have to
stand on line, are treated like kings. . . .
A courthouse is a "nonpublic forum," which is to say a piece of
property that's owned by the government, and that hasn't been opened
as a place for people to speak to the public. The government may
restrict speech in such fora, but only if the restriction is
reasonable and viewpoint-neutral.
Thus, the government can certainly ban picketing or demonstrations
inside a courthouse. It may even ban all profanity, or impose other
viewpoint-neutral restrictions. (Those who want to respond by citing
Cohen v. California might want to read [2]this page.) But it can't
impose viewpoint-based restrictions, even on speech that offends
people.
So if Kash and Lanzisera were just talking to each other at a normal
tone of voice in line, and were punished because the stuff they were
saying was critical of lawyers, the matter would be simple: The
government action would be unconstitutionally viewpoint-based. If they
were talking to the rest of the line -- standing nearby and orating to
strangers, especially in a loud voice -- and there were a clear
courthouse rule prohibiting such behavior, then their violation of
this rule (even after having been told about it) would likely be
constitutionally punishable as disorderly conduct. (It would interfere
with the operation of the courthouse, because it's a political
demonstration in the courthouse and not because of the particular
viewpoint the demonstration expresses.)
This case is somewhere in between, I suspect: It sounds like Kash and
Lanzisera were indeed trying to speak to a broad group of strangers,
but at the same time it sounds like there probably isn't such a clear
rule here.
If these factual assumptions are correct, then Kash and Lanzisera's
argument wouldn't be open-and-shut. But I think it would still be
pretty strong: Even if the government could restrict public orations
in the courthouse, it couldn't do it through a general "disorderly
conduct" rule that vests officials with unbridled discretion that the
officials could easily use in viewpoint-discriminatory ways. The
prohibition on unbridled discretion to restrict speech is at its
strongest in traditional public fora, such as sidewalks and parks. But
I suspect it would apply even in nonpublic fora, such as courthouses.
Cf. Board of Airport Com'rs of City of Los Angeles v. Jews for Jesus,
Inc., 482 U.S. 569, 576 (1987).
In any case, I expect that if Kash and Lanzisera are indeed
prosecuted, they'll fight the case on First Amendment grounds, and
we'll learn more both about the factual details and the applicable
legal rule.
References
1. http://www.newsday.com/mynews/ny-lijoke124112175jan12,0,1572614.story
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=403&invol=15#19
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