At Volokh Conspiracy, Eugene discusses the conundrum in Legacy Entertainment & Arts Foundation v. Mina, where suit was brought to pre-emptively challenge Florida’s new Combating Public Disorder Act.
A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in: (a) Injury to another person; (b) Damage to property; or (c) Imminent danger of injury to another person or damage to property…
The likelihood of this law being applied unconstitutionally is extremely high, and its motive seems clearly to preclude “mostly peaceful” protests by BLM supporters. So what could be wrong about challenging such a law before its used to wrongfully silence and chill protest? Judge Paul G. Byron explains.
Notwithstanding Plaintiffs’ repeated emphasis that they have “no intent to incite a riot or promote force” they argue that the Act “threatens to impose liability … regardless of their intent to incite violence.” This is not a reasonable interpretation of the Statute. Section 870.01(2) explains that “[a] person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct.” Likewise, “[a] person commits inciting a riot if he or she willfully incites another person to participate in a riot, resulting in a riot or imminent danger of a riot.”
Although “[n]othing in [the Supreme Court’s] decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law,” he must identify conduct that could at least arguably violate the law. In this case, Plaintiffs’ persistent disavowal of an intent to cause violence prevents them from falling within the ambit of a Statute with an express intent requirement. Therefore, they have not identified any protected conduct or speech that is arguably proscribed by the Statute.
You can’t have it both ways. Either your challenge to the law is predicated upon a claim that you will at least arguably violate it or you have no standing to sue. It’s entirely understandable that plaintiff vehemently argues that the protests of which it complains will be peaceful, for that’s the point of the challenge, that the law will chill the constitutionally protected right to lawful and peaceful protest. But then, the law doesn’t criminalize lawful and peaceful protest, so what’s the beef?
The flaw in Plaintiffs’ reasoning is subtle—they do not argue that the Statute itself improperly penalizes protected speech, but that the Statute will be improperly applied to penalize protected speech. They argue that the Statute “increases opportunities for selective enforcement and selective prosecution based on hostility toward unpopular views, like Black Lives Matter.” The Court agrees that this outcome is possible—if not probable. But the potential for viewpoint-based application of a facially neutral law cannot be litigated ex ante. Selective enforcement against disfavored speakers “would of course be unconstitutional, but [the Supreme Court] think[s] that this abuse must be dealt with if and when a pattern of unlawful favoritism appears.”
Is the judge just being naive or hypertechnical, given that everybody, court included, seems to grasp the point of the challenge and doesn’t raise any serious doubt as to the future raising an “as applied” challenge to the law.
But the “subtle” flaw isn’t really that subtle, and serves an ameliorative purpose. Most criminal laws can be abused, targeting people not for violating them but for some ulterior and improper purpose. Whether that’s a flaw of the law or of the people executing the law is another matter. But the assumption that a law will be abused could make all criminal laws untenable. Even murder, which most of us can agree is a crime that demands prosecuting, could be suspect if only gingers were arrested and prosecuted while blonds were given a pass.
No, the genesis of this law seems to clearly implicate a desire to thwart constitutional protest and gives rise to both a huge chilling effect for those who would want to protest but fear that some jerk in the crowd wearing all black will do something violent and stupid because of an excess of passion and a dearth of maturity. But until that happens, or unless somebody challenges the law alleging that they just plan to throw a few rocks at windows, they have no standing to sue. What they cannot do is argue that they will absolutely, definitely not violate the law, but still want the right to challenge it. You can’t have it both ways.
No comments:
Post a Comment