On Wednesday, three Code Pink activists were found guilty by a jury of their peers for the alleged disruption of Jeff Session’s confirmation hearing. For this conviction, they face jail time (although it sounds as though they likely won’t ultimately be slapped with prison time at their sentencing hearing, which is in June). But here’s the thing, no one was convicted for laughing, i.e., laughter isn’t the chargeable offense. All three were charged with disorderly conduct and parading or demonstrating within Capitol buildings. This might sound like nitpicky semantics (especially because laughter set the ball in motion and, in my opinion, I think the decision to arrest these three activists at the confirmation hearing was an absurd waste of energy and resources and also indicative of this administration’s severely misplaced priorities), but these nitpicky distinctions really matter when it comes to understanding what’s happening in this country right now. (Because “charged with laughing” sounds like more easily overcome buffoonery, while “charged with existent laws that were arguably puffed up and maybe misapplied” is a little more insidious. I don’t know about you, but the latter is scarier to me.)
I disagree with the actions of the Capitol Police, the decision to prosecute, and the outcome, but I also take issue with the media’s presentation of the issue. Clickbait headlines really don’t help us pull out of our downward spiral into misinformation and half stories.
Desiree Fairooz is the infamous laugher, of course, who was hauled out of the confirmation hearing shortly after giggling/gasping at the assertion that Mr. Session’s record of “treating all Americans equally under the law is clear and well-documented.” Ms. Fairooz and her two compatriots were subsequently charged with (1) disorderly conduct and (2) parading or demonstrating on capitol grounds.
Now, I had to do a little digging (and I’m still not entirely convinced I’ve landed on the right laws) because news sources, for whatever reason, are not interested in linking to either law or court documents (which, as a lawyer, is something that has begun to frustrate me to no end when sifting through articles), but I believe that laws in play here are D.C. Code § 22-1321(b) and/or (c-1) – Disorderly Conduct, and D.C. Code § 10-503.16(b)(4) and/or (7) – Unlawful Conduct. And don’t quote me on this because I’m extrapolating based on the paltry amount of fundamental information provided by the media in its reporting. For example, I don’t actually know whether the activists were charged under D.C. Code or Federal law. (I did find the court records – https://www.dccourts.gov/cco/maincase.jsf – but, alas, parties’ filings are generally not freely available.)
ANYWAY, in relevant part, the Disorderly Conduct law reads:
(b) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct, with the intent and effect of impeding or disrupting the orderly conduct of a lawful public gathering, or of a congregation of people engaged in any religious service or in worship, a funeral, or similar proceeding.
(c-1) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct in a public building with the intent and effect of impeding or disrupting the orderly conduct of business in that public building.
Basically: A person can’t head into a public event or a public building with the intent to disrupt it by getting very loud, hurling abusive language, making threats, or acting in such a way as to be disruptive.
The relevant bit of the Unlawful Conduct law reads:
(b) It shall be unlawful for any person or group of persons willfully and knowingly:
(4) To utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof;
(7) To parade, demonstrate, or picket within any of the Capitol Buildings.
Basically: A person can’t make loud threats or use loud, abusive language, or behave in a disorderly or disruptive way in order to throw the usual Congressional proceedings off the rails or into disarray. Nor can someone hold a protest within any of the Capitol buildings.
Both laws require that an individual be acting with the purpose of causing the disruption. Someone whose actions or words have an unintentional disruptive effect are not in violation of the law (or should not be found to have been in violation of the law)
Honestly, in reading these laws, I’m a little surprised that the Ms. Fairooz’s attorney wasn’t able to keep the jury from reaching a guilty verdict with respect to disorderly conduct. This is especially the case given that at least one reporter who was present at the hearing said that the laugh was not loud, nor did it disrupt Senator Shelby’s speech. But then again, when asked, some of the jurors said that it wasn’t the laugh/gasp that led them to reach a guilty verdict, but Ms. Fairooz’s behavior after being confronted by the Capitol Police. She allegedly grew loud and wanted to know why she was being arrested (as most of us would want to know, I suspect – one could argue that the real disturbance came from the rookie, maybe-arrest-happy, Capitol Police officer who decided that the start of a hearing was a good time to make her very first ever arrest, rather than from Ms. Fairooz, but I digress).
Obviously, without witness testimony, I can’t tell what happened, and most of the news I’ve seen apparently also lacks that information. Personally? I think there’s an intent issue. The Disorderly Conduct law requires that the defendant have acted with the “intent and effect of impeding or disrupting” whatever is happening. I would have thought Ms. Fairooz’s attorney could have made mincemeat of the prosecuting attorney’s argument for intent (ok, maybe that’s a bit strongly put, but I think he could have made a good argument as to why the intent was not there). And without the requisite intent, as previously mentioned, there is not a violation of the law.
I will say, though, that from a legal standpoint, the three activists were probably violating the ban on demonstrating/picketing within any of the Capitol Buildings. The three defendants were dressed up and, more importantly, carried signs – they were fairly clearly demonstrating Mr. Session’s confirmation. Ms. Fairooz had a banner that she unfurled.
I’m not going to get into a long legal analysis at the moment because (1) I don’t have the time right now to dig into caselaw to figure out the legal environment (although, if I do it later and find something interesting, I’ll update) and (2) I primarily wanted to draw attention to the media’s mislabeling of what was actually going on. The case isn’t just a matter of “she laughed, she’s guilty, end of story.” That makes for great headlines, but it’s a gross oversimplification of the law. I also think it overlooks what’s actually (to me) the most disturbing part of this: the government’s steady push to crackdown on speech and its willingness to twist existent laws to its own ends. We’ve seen it with respect to Trump’s Executive Orders and now we’re seeing it with respect to civil disobedience. I am also left wondering (and concerned) about the impact of this twisting on jurors, who hold no legal training and who may be less attuned to shady maneuverings. The government didn’t go, “You laughed and offended us, therefore you’re going to jail.” Instead, the government said, “We won’t tolerate difference of opinion, here’s a couple of laws that are on the books, now we’ll twist them and their intent and misapply them to a context in order to paint a picture to non-legally trained citizens of a violation that probably didn’t exist.”
To be fair, the United States’ justice system has been botched for a very, very long time, but now we’re seeing those cracks running deeper into our Constitution, and it’s very unsettling. I just wish the media would let up on the clickbait and set their journalists to picking apart the real stories. Here, that’s the government’s arguable perversion of the law to shutdown dissent.
Ok. What. Mitch McConnell and his minions are really pushing their luck here. The Senate Republicans literally took a vote to make a woman stop talking. All right, that’s an inflammatory statement. It’s true, but it’s also inflammatory. This is what happened.
Yesterday, the Senate was digging into a debate over Senator Jeff Sessions’ nomination for Attorney General. In this vein, Elizabeth Warren got up to say her piece – her disapproving piece – armed with a letter from Coretta Scott King, written 30 years ago in response to Sessions’ failed judicial nomination in the 1980s. Warren used the letter in her speech against Sessions’ suitability for the post and as grounds for attacking his civil rights record (which is, shall we say, bad). In the letter, King wrote: “Anyone who has used the power of his office as United States Attorney to intimidate and chill the free exercise of the ballot by citizens should not be elevated to our courts. Mr. Sessions has used the awesome powers of his office in shabby attempt to intimidate and frighten elderly black voters. For this reprehensible conduct, he should not be rewarded with a federal judgeship.”
McConnell lost it and claimed that Warren broke a Senate rule that prohibits one member from impugning the conduct of another. Then he forced a vote which resulted in a 49-43 decision to uphold McConnell’s speech chilling position. As Donna Brazile, chairwoman of the Democratic National Committee, said: “It’s a sad day in America when the words of Martin Luther King Jr’s widow are not allowed on the floor of the United States Senate. Let Elizabeth Warren speak. The American people deserve to hear how Jeff Sessions is an extremist who will be a rubber stamp for this out-of-control Trump presidency.” McConnell, for his part gave a rather self-important statement to Politico, “Senator Warren was giving a lengthy speech,” he was quoted on Politico as saying. “She had appeared to violate the rule. She was warned. She was given an explanation. Nevertheless, she persisted.”
And, as per usual, there appears to have been some selective rule enforcement happening – nothing happened to Ted Cruz when he accused McConnell of being a “liar” while on the Senate floor. Senator Chris Murphy also pointed out that when the subject of the debate is a Senator’s suitability for a job, enforcing a rule against insult is a little ridiculous.
Soooo…what was the rule? Rule 19(2). It states, “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” But Rule 19 is rules for debate in the Senate. Presumably it refers to making unwarranted ad hominem attacks on an opposing debater. Not to submitting information for consideration. There is a rather large different between Senator Warren saying “Jeff Sessions is a raging racist asshole” and reading an excerpt from a letter written by Coretta Scott King in response to his failed judicial nomination in the 1980s. But then again, Slate put it this way: “Rule used to silence Warren was created to protect delicate feelings of Senate’s foremost lynching advocate.”
Seriously. Rule 19 was enacted in 1902 after a fist fight on the Senate floor between Senators Ben Tillman and John McLaurin after McLaurin called Tillman a “malicious liar.” A third party to the fight, Senator George Hoar was excited to have an excuse to propose a rule he’d been sitting on for a while. But Tillman was kind of a “malicious liar.” And worse. He’s on record saying things like, “Lynch law is all we have left” and “[We] agreed on the policy of terrorizing the Negroes at the first opportunity by letting them provoke trouble and then having the whites demonstrate their superiority by killing as many of them as was justifiable” (in that speech, Tillman also boasted that he’d executed seven black men in 1876 with his pistol). Soooo maybe it’s a little ironic that McConnell pulled it out of the “use-‘em-when-it-behooves-us” grab bag of Senate rules.
It’s also worth noting that the rule isn’t often invoked – in 1979 Senator Lowell Weicker called Senator John Heinz “an idiot” and “devious.” Senator Heinz invoked the rule and the two later agreed upon a truce. (And again, keep in mind that Senator Cruz straight-up called McConnell a liar in a 2015 speech in the Senate and no one said a peep.)
And here’s the worst bit (worst for last): Senator Warren is no no longer permitted to speak at all during the ongoing floor debate regarding Sessions’ nomination. That’s right. She’s permanently silenced. If that isn’t devious, I don’t know what is.