In a curious case, two “racial justice” protesters have been indicted in Cuyahoga County, Ohio, on felony assault charges. The facts are in substantial dispute, whether a hostess at a restaurant targeted for its “perceived racist and sexist behavior” suffered serious bodily injury.
Jacqueline Boyd is the director of operations at TownHall and the first cousin of owner Bobby George. She was working as a hostess at the back entrance on July 12 and alleged that she suffered permanent hearing loss due to the proximity of the megaphones throughout the event. Indeed, the weaponization of the megaphones is the basis for the felony charges. Local civil liberties attorneys and first amendment advocates view the indictments as extreme.
It’s unclear whether the protesters’ megaphones were in her ear or she was just one of many in the vicinity of the amplified sound, the only one claiming injury. It’s also unclear whether the injury is legit at all, as she’s not receiving medical treatment or using a hearing aid, but “natural remedies like yoga.” And there is clearly motive for the hostess, cousin of the restaurant owner under attack, to accuse in retaliation.
But these factual issues are what trials sort out. The attorney for the two protesters, Peter Pattakos, took a different approach.
“My clients, their families, and their attorneys are shocked that the Cuyahoga County Prosecutor’s office would pursue any charges, let alone felony charges, here. Not only is the theory of this prosecution constitutionally suspect and ridiculous on its face – that these civil-rights protesters who were engaged in fundamental First Amendment-protected activity committed felony assault by soundwaves emitted from standard-issue megaphones – but the dishonesty and retaliatory motive of the so-called victim here could hardly be clearer from the evidence, including hours of video footage from various sources, that [the prosecutor’s] office has apparently failed to review.”
While the idea of assault by soundwaves is novel, does it implicate First Amendment concerns?
Cuyahoga County Prosecutor Michael O’Malley told Scene that in his understanding, Jaqueline Boyd had indeed suffered permanent hearing loss, which constitutes serious bodily harm under Ohio law. Hence the felony. He said that a grand jury “composed of citizens of this county” decided that a criminal indictment was warranted, but said that the defendants would have an opportunity to present their case before a judge or jury, and he had every expectation that justice would prevail.
The “ham sandwich” argument is silly, but if the use of megaphones purchased from Amazon, apparently noted for the sake of showing that these weren’t some sort of super-duper weaponized megaphones from the Special Ops Shop, caused the hearing loss, which the prosecutor claims to be true, then the level of injury is severe enough to warrant felony charges.
Andy Geronimo, director of the Case Western Reserve University First Amendment Law Clinic,… said the indictments were very troubling to him.
“From all appearances, this is a felony prosecution of speech,” he wrote in an emailed statement to Scene. “While there have been First Amendment challenges to restrictions on the time, place, and manner of the use of amplified sound, I’m not aware of any criminal prosecution, (apart from this one), where the claimed harm is hearing damage from a megaphone or other amplification system. The Supreme Court has repeatedly held that the First Amendment’s guarantee of freedom of speech does not change because the speaker used technology to convey their message, and I hope that the prosecutor’s office considers the constitutional implications involved in criminalizing acts of free expression.”
This is certainly a novel prosecution theory, and it’s correct that the use of technology to “convey their message” doesn’t change the speakers’ free speech rights, but is the message at issue here? From the defense perspective, this is a sham complaint, a false claim of harm ginned up to retaliate against protesters who are saying bad things about the owners of some restaurants.
The defense is that this is one big sham to silence the protesters’ message. The prosecution’s contention is that the message is irrelevant; the crime is amplifying sound as the weapon of harming another person.
Despite the fact that the defense’s contentions aren’t a matter of chanting for the cause, Pattakos’ arguments smell more like the sort of vapid screams from outraged activists on twitter than a rational and effective legal position.
“I have every reason to believe that your office has been badly misled as to the basis for this indictment,” Pattakos wrote, attaching a related brief which he said would illustrate the “incredibly outrageous” nature of the charges. “I expect that when you read it you will agree, and that your office will immediately dismiss this case.”
When isn’t it a winner to call the charges “incredibly outrageous” and expect dismissal?
The brief, filed after Boyd sought a restraining order against Douglas and Yahner in the wake of the July 12 demonstration, advanced the position that Jacqueline Boyd and Bobby George were seeking to leverage their resources to “pervert and subvert clearly established law to serve their own personal interest.”
The defense’s contention, that this is a prosecution brought to silence protests and prevent them from highlighting the restaurant owner’s racist and sexist behavior (which remains a mystery from the article), may be true. But putative victims seeking a restraining order is utterly commonplace, and it’s supposed to serve their “own personal interest” by preventing them from being the victim of further criminal conduct. It may be perverted, but it’s hardly unusual.
And why the defense believed this was worthy of inclusion in its brief is unclear:
The September brief included a quote on that topic from the testimony of Chris Piazza, another With Peace We Protest member and Cleveland-Marshall Law student.
“These protesters are supposed to be disruptive,” he said. “They’re supposed to be offensive. They’re supposed to be bothersome. If these protests were just us sitting at home behind our keyboards, nothing would ever happen. We need to be out there. We need to be loud and obnoxious, just to get people’s attention. That’s the only way we’re ever going to affect any change.”
Civil disobedience is certainly an effective way to garner attention, but it’s the antithesis of getting a free pass on criminal prosecution. One would think a law student like Piazza, and a lawyer like Patakkos, would grasp that the point is that the cause is worth getting convicted, not a defense for the crime.
In the meantime, the novel legal question, whether an assault can be committed by soundwaves, has been subsumed by the empty noise of hyperbolic outrage, ironic given that it was amplified noise, regardless of message, at issue in this prosecution. If the facts fail to meet the elements of the offense, then the time, place and manner to dispute them is at trial.
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