Isn't arresting Cindy Sheehan at the SOTU unconstitutional?

[FormerRepublican]

The Bill of Rights states:

"Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Well, if Congress can't make a law that limits the right of people to petition the government for a redress of grievances, then the House can't make a rule that Cindy Sheehan can't wear a T-Shirt that has the number of Iraq war dead on it (since her protests are aimed at obtaining a redress of grievances), nor can the Capital Police arrest her for it because any law that objects to her protest would be unconstitutional. Even if it were argued that the Capitol building is a private place where rules (not laws) can be enforced, the most they could do is expel her from the building, not arrest her.

Seems to me the ACLU should get involved in this one, since Ms. Sheehan's constitutional rights were violated.

[xiamiam]

1. bingo...thank you....

[Mike Nelson]

2. Bush doesn't have much respect for anything constitutional

He probably made the final order to throw her in jail

[mb7588a]

3. could be the start of a beautiful lawsuit. nt.

[pacalo]

16. I think so, too!

Besides the excellent point made by FormerRepublican, there were several versions of why Cindy was arrested: She "unfurled a banner", she took off her jacket & was wearing an anti-war t-shirt, she "caused a disruption". I'm anxious to hear Cindy's version.

I have a feeling she was sought out to be removed.

http://cdn.news.aol.com/aolnews_photos/09/02/20060131214609990005

[me b zola]

41. That will end up in our new SC??

Scallia, Roberts, Thomas, Alito. We no longer have a court to take our grievences to. Still, I agree with you, Cindy should seek her day in court.

[upi402]

4. Constitution? That's sooo 1990

C'mon! Dincha hear the Pretzelnit?
It's just a peice of paper.

[FreedomAngel82]

17. There you go again

using that pre-911 mentality. :sarcasm:

[upi402]

28. When I'm on my pity potty, I like to use

The constitution of the United States of America to wipe with!

yay! Me for Supreme Court Justice!:bounce:

[tyedyeto]

5. The Capital is not a private building

It is public paid for by our taxes.

[New Earth]

6. i wonder if this was her point

other than to make the point of 2,245 soliders dead.

she knew this would happen. and it did.

[SnoopDog]

7. The Capitol, by definition, is a public place...

Thanks for your well stated post....

[formernaderite]

46. Not sure....on public property I could pull a permit

and disallow right wingers from walking through my protest wearing opposing slogans.(they could walk through, or even stay and listen, but no sloganeering) I could indeed have them removed and if they refuse, arrested. So there are times when freedom of speech is not permitted.

[FormerRepublican]

48. You're confusing the right of free speech with the right to petition the..

...government for the redress of grievances.

[AngryAmish]

8. We will make our own "Constitution"

We must silence the hate-mongers. They cannot be allowed in our country.

[Yoda Yada]

9. It doesn't matter when you think you are KING. nt

[Maru Kitteh]

10. In the America in which you were born? YES

In Dubya's fuckhead imperialist gubernment? No, I guess, it's not.

[TechBear_Seattle]

11. "Fire!" in a crowded theater

Interestingly enough, the Supreme Court decision that the anti-free speech justification came from was Schenck v. United States. Charles T. Schenck was sentenced for violating the Espionage Act of 1918, which made it a federal felony punishable by 20 years in prison and/or a $10,000 fine (a vast sum at the time) to interfere with the operation of any military excercise or promote the success of America's enemies.

Schenck's crime? Handing out leaflets calling the newly created draft for WW I a violation of the 13th Amendment. He was the one that got to the Supreme Court; during WW I, thousands more were arrested and thrown in prison for protesting the war in some manner, most by leafletting or other forms of peaceful demonstration.

Oh, and by the way... that particular part of the Espionage Act has never been repealed and is still active federal law as 18 USC sec. 2388. It reads in part:

(a)...
Whoever, when the United States is at war, willfully causes or
attempts to cause insubordination, disloyalty, mutiny, or refusal
of duty, in the military or naval forces of the United States, or
willfully obstructs the recruiting or enlistment service of the
United States, to the injury of the service or the United States,
or attempts to do so -

Shall be fined under this title or imprisoned not more than
twenty years, or both.

So, watch out all of you war protesters! You, too, could face 20 years in a federal jail in Bush's America!

[FormerRepublican]

14. Yes, but in this case, it's not a violation of her right to free speech.

It's a violation of her right to petition the government for a redress of grievances. The very same right the lobbyists use to access Congress. So, if they rule against Cindy, they rule against the right of lobbyists to access Congress.

Get it?

[TechBear_Seattle]

21. Read the Schenck decision from which the phrase is derived

Essentially, the government has a duty to punish excercise of First Amendment rights when such exercise "endangers" the country, interferes with military operations or helps to give comfort and support to the country's enemies. As far as the Current Regime is concerned, any reminder of how many young men and women have died because of Bush's failures is giving comfort and support to the country's enemies.

[FormerRepublican]

26. They would have to prove that the same data is not already publicly...

...available. Repeating data that is already public, as in reading a press report of Iraq casualties, cannot be construed as giving comfort and support to the countries enemies. The Administration itself already released the data to the press, thus ANY public use would be lawful. They can't single Cindy out for prosecution - they would have to prosecute EVERY press outlet who has ever disseminated the data released by the government.

[TechBear_Seattle]

31. I never said or meant to imply that her arrest was sensible or legal

:hi: I'm only offering a possible rationale for Sheehan's arrest and supporting that rationale by showing that when it suits the government, the right to free speech (and by extention, the right to petition and the right to a free press) are not absolute under a Supreme Court ruling that's 89 years old.

Further, I believe your argument above is spurious. The merit of Schenck's activities -- whether or not a draft constituted involuntary servitude -- was not why he was arrested, charged and convicted. The fact that he made the attempt to present that argument is. The precedent is very, very clear.

[FormerRepublican]

33. We're arguing two separate parts of the Constitution.

And since lobbyists scream the one I'm talking about to high heaven, and lobbyists have a great deal of political power, THAT is the Constitutional right that should be argued.

I would assert that a public figure such as Ms. Sheehan, who is protesting government action (on it's face a petition for a redress of grievance), is a totally different situation from someone who is filing a lawsuit to void the draft in a time of war. Note that Ms. Sheehan's original request was merely a meeting with the President to discuss the issue. Even if she had demanded an immediate withdrawal, her actions wouldn't even come close to a legal case to void a draft in a time of war, but would still fall in the realm of a government petition. Do you see the difference in the two cases?

[upi402]

30. Law vs Bushistas...hmmm... the LAW LOSES!

[jsamuel]

22. oooo, that is a really smart argument

[Sydnie]

23. It goes with the "no electioneering in public buildings" law

That is what they would probably get her for. No campaign buttons, no posters, no raising funds, etc ... those are the things that are not allowed in buildings owned by the public. It's a stretch, but that is probably what they are looking at to justify it.

She had no candidate's slogan on that shirt, no campaign endorsement, ... it's a stretch.

[FormerRepublican]

29. In that case, the "no electioneering in public buildings" law would itself

...be declared unconstitutional since it would prevent Ms. Sheehan from petitioning the government for redress of her grievances. The first amendment right is in the Constitution, the law regarding no electioneering in public buildings is not. The Constitution takes precedence.

[Anita Garcia]

27. Agreed

Words on a shirt are protected free speech.
American flags on a lapel are protected free speech.

Protesting the war does not give aid and comfort to the "enemy".
That will be the subject of my next shirt.

[0rganism]

35. The Schenk interpretation has been obsoleted by Brandenburg, IIRC

In Brandenburg v. Ohio, the court held that the standard for actionable political speech was the incitement of imminent lawlessness.

[never_get_over_it]

12. So what is your point

that constitution must be jeeeeez over TWO HUNDRED YEARS old and just a GD piece of paper.

[mmonk]

13. The way I read it, yes. But its just a piece of paper.

[TahitiNut]

15. They'll say she was "detained" and not "arrested" - -

... and I doubt she'll be charged. If she's charged with anything, it'll be something totally specious like disorderly conduct or violating a security perimeter for which she might be fined $25 or some ridiculous crap.

[FormerRepublican]

18. According to this thread:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x289555

...she's already been charged with unlawful conduct. So - what's the unlawful conduct?

[TahitiNut]

34. 40 USC 193f

Section 193f. Capitol Grounds and Buildings security

(a) Firearms, dangerous weapons, explosives, or incendiary devices
It shall be unlawful for any person or group of persons -
(1) Except as authorized by regulations which shall be promulgated by the Capitol Police Board:
(A) to carry on or have readily accessible to the person of any individual upon the United States Capitol Grounds or within any of the Capitol Buildings any firearm, dangerous weapon, explosive, or incendiary device; or
(B) to discharge any firearm or explosive, to use any dangerous weapon, or to ignite any incendiary device, upon the United States Capitol Grounds or within any of the Capitol Buildings; or
(C) to transport by any means upon the United States Capitol Grounds or within any of the Capitol Buildings any explosive or incendiary device; or
(2) Knowingly, with force and violence, to enter or to remain upon the floor of either House of the Congress.
(b) Violent entry and disorderly conduct
It shall be unlawful for any person or group of persons willfully and knowingly -
(1) to enter or to remain upon the floor of either House of the Congress, to enter or to remain in any cloakroom or lobby adjacent to such floor, or to enter or to remain in the Rayburn Room of the House or the Marble Room of the Senate, unless such person is authorized, pursuant to rules adopted by that House or pursuant to authorization given by that House, to enter or to remain upon such floor or in such cloakroom, lobby, or room;
(2) to enter or to remain in the gallery of either House of the Congress in violation of rules governing admission to such gallery adopted by that House or pursuant to authorization given by that House;
(3) to enter or to remain in any room within any of the Capitol Buildings set aside or designated for the use of either House of the Congress or any Member, committee, subcommittee, officer, or employee of the Congress or either House thereof with intent to disrupt the orderly conduct of official business;
(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;
(5) to obstruct, or to impede passage through or within, the United States Capitol Grounds or any of the Capitol Buildings;
(6) to engage in any act of physical violence upon the United States Capitol Grounds or within any of the Capitol Buildings; or
(7) to parade, demonstrate, or picket within any of the Capitol Buildings.
(c) Exemption of Government officials
Nothing contained in this section shall forbid any act of any Member of the Congress, or any employee of a Member of the Congress, any officer or employee of the Congress or any committee or subcommittee thereof, or any officer or employee of either House of the Congress or any committee or subcommittee thereof, which is performed in the lawful discharge of his official duties.

I think it's interesting that lobbyists can crawl all over the place and stuff money in the pockets of corrupt politicians and a mother of a dead soldier wearing a t-shirt gets arrested and hauled off to jail.

How can Chalabi sit with th Bushes and Cindy get arrested? We're Over The Rainbow, folks.

[0rganism]

40. Unless she was actively disruptive, they have to prove intent

I doubt that's gonna fly, even taking past history into consideration. Then again, I might just be engaging in some "Old Republic" thought patterns.

[TahitiNut]

47. I agree - nothing "violent or disorderly" whatsoever. Nothing.

Since when is wearing a t-shirt that correctly identifies the number of troop deaths a 'disruptive' act? Since when is a verifiable fact 'disruptive'? The name 'Bush' appeared NOWHERE on the t-shirt, so how the hell can it factually be called "anti-Bush"?? I guess the truth is admittedly "anti-Bush" nowadays.

[FormerRepublican]

44. The rule may be on the books, but I'm afraid it's unconstitutional, folks.

Ms. Sheehan should challenge it.

[TahitiNut]

45. (IANAL) I agree. I really think they just wanted to get her out of there

... during the Fecal Fuhrer's verbal diarrhea. His arrogance in dictatorial spying on Americans was totally appalling! The FACT that they suffled her off to another facility than they siad they would and that it was further from the Capitol and that they delayed her release for 3 hours says to me that they were acting PREEMPTIVELY -- "prior restraint" -- and did not have probably cause for the arrest. It was a PURELY political arrest, unrelated to any legitimate material need to "protect and serve." It's a Police State, guys.

[Sydnie]

19. they are talking unlawful behavior and it is a misdemeanor but

it could hold a years sentence. How is her last arrest case going? Didn't she say she wasn't going to show for her previous court date? If she didn't, they just might be able to make this case stick.

[dysfunctional press]

20. you can't have a New World Order without order...

ve vill have Order!

[baldguy]

24. T-shirts are now WMDs.

[buddysmellgood]

25. Grieving mothers of fallen soldiers are among the most dangerous

terrorist threats we have. We call them disruptors and they must be stopped. They are enemies of the people. We need to pass a new law so that the disruptors can be held indefinitely in camps. Large camps filled with grieving mothers of fallen soldiers and others who even dare mention that people have died in Iraq. Peace is war. Love is hate. Bush is good.

[bvar22]

32. Clearly an enemy combatant....

who would have made the chimperor* feel bad.

[sampsonblk]

36. This is a slippery slope you guys

Cindy Sheehan had no business taking her political protest inside the capitol. We all agree about Bush. But what she did (or intended to do) is going too far. I don't believe that she had a constitutional right to protest during a SOTU address. Take it outside.

Beyond that, if she is allowed to make even a silent protest during the SOTU, then what's wrong with someone else going even further next time? What about these anti-abortion activists yelling that our guy (or gal) is a baby-killer next time? Where would it end?

I say let's protest Bush at every legitimate opportunity. The SOTU is not one of them.

[Bluebear]

37. Yup. Musn't upset His royal highness, who is almost as popular as Jesus

It was a t-shirt, not a grenade.

[EFerrari]

38. The First Amendment is not suspended during the SOTU. n/t

[Rocknrule]

43. Apparently, it has been suspended for the past 5 years

[SeveneightyWhoa]

39. The world has changed since 9/11.

The constitution is outdated! I mean, how old is it now?

[Justice Is Comin]

42. Unconstitutional my purple middle finger

Cohen v. California

No. 299

SUPREME COURT OF THE UNITED STATES

403 U.S. 15

Argued February 22, 1971

Decided June 7, 1971

Syllabus

Appellant was convicted of violating that part of Cal. Penal Code § 415 which prohibits "maliciously and willfully disturb the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 22-26.

1 Cal. App. 3d 94, 81 Cal. Rptr. 503, reversed.


http://www.bc.edu/bc_org/avp/cas/comm/free_speech/cohen.html


Add this to his articles of impeachment.

[xiamiam]

49. the majority of Americans disapprove of the presidents direction

why is it inappropriate for any of the majority to question the bogus sotu....its just pomp and pageantry...untruth...and despicable...