The key sticking point from day one of the plea negotiations has been the prosecution’s unrelenting insistence that we demonstrators must be left with a permanent adult criminal record for taking action.
Of course, we always recognized this as a distinct possibility from the start. But it isn’t actually the case for most acts of civil disobedience. This is especially true for first-time offenders, which I, and most of the demonstrators are.
I can think of one reason for the prosecutors to be insisting on this: Bush stacked Justice with a bunch of Liberty University graduates (the Monica Goodling Syndrome) that Holder hasn't managed to get rid of, and they're running loose. We know that that horrible DOMA brief was written by one of them, and it doesn't seem that the administration has wised up.
I'm also convinced that Obama sees us as one of the pawns that can be sacrificed to get something else. It's not working very well, but I don't feel I can accuse him of being a realist.
The reaction of the judge, I think, supports my Liberty University hypothesis: there's a huge First Amendment issue here, and they just don't get it:
Also, the more serious Federal statute that the US Attorney has elected to charge us with, “failure to obey a lawful order,” our attorneys contend has not been used before to discipline participants in a free speech demonstration.
The application of this Federal statute to our case seemed to strike Judge Facciola as both unusual and disproportionate to the infraction, as well. He seemed to entertain Goldstone’s argument it could be a troubling indication of an abusive measure taken to punish civil rights demonstrators. Judge Facciola himself, unprompted, offered a comparison Shuttlesworth v. Birmingham, a landmark unanimous Supreme Court decision of the Civil Rights Era. Fred Shuttlesworth was involved in the Southern Christian Leadership Conference and an ally of Dr. Martin Luther King’s. In 1963, he was arrested for conducting a civil rights march in Alabama without obtaining a proper parade permit. He was convicted under a local Birmingham statute.
The Court reversed Shuttlesworth’s conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas.We took Judge Facciola’s spontaneous citation of Shuttlesworth as an encouraging sign that he is cognizant and respectful of how seemingly benign statutes can be applied in a capricious, even malicious manner, to squash the free speech rights of disenfranchised and oppressed minorities.
The judge can't do anything about what charges are brought, except to ask the prosecution to reconsider, which he has done. But if the defense brings up the First Amendment issue, DoJ is dead in the water -- this is an obvious attempt to censor ideas.
It'll be interesting to watch this one play out.
There's a commenter who keeps harping on the "be nice and just talk to people" idea as a way of condemning GetEqual for its confrontational tactics, which seems to be a widespread reaction among gay bloggers, which I don't understand at all. As I pointed out in one of my own comments, no civil rights movement has ever made any progress in this country without making a lot of noise. We're not going to get anywhere by just talking to people -- that's what you do with friends, family, neighbors, co-workers. For politicians, you have to yell, because the professional homophobes are making a lot of noise and we have to counter that. There's also the fact that gay civil rights are not on most people's radar, and we have to get their attention before talking is going to do any good. We've seen from the sterling record of HRC and its ilk what just talking does -- you get played for a patsy.
I'm not anyone's patsy.
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