In response to a protester who shouted that the judicial system is “corrupt,” a Florida judge ordered the arrest of anyone outside the courthouse, including on certain public sidewalks, who “call(s) into question the integrity of the court or any of its judges.”
The order was released July 1 by Judge Mark Mahon of the state’s Fourth Judicial Circuit.
Among others, it was addressed to bar associations, senior judges, administrative judges, magistrates, public defenders, state attorneys, clerks, lawyers and the sheriffs in Jacksonville, Clay and Nassau counties.
Mahon, whose staff accepted a request from WND for comment but did not respond, explained in his order why he declared large sections of property, including sections of public sidewalks and parking garages, part of the judicial complex and banned certain speech there.
“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge said.
“Any person engaging in the type of expressive conduct as indicated in this order may be found in criminal contempt of court,” he continued. “The Jacksonville sheriff’s office shall give any person on the courthouse grounds who is violating any provision of this order a copy of this order and advise such person of the relevant restrictions herein.”
He said that if an individual “is observed to engage in conduct that is in violation of this order after having been provided notice as set forth herein, the Jacksonville sheriff’s office is hereby DIRECTED to arrest and charge the offending individual with indirect criminal contempt of court (and any other charges deemed appropriate) and transport such person to the Duval County Jail for identification and processing.”
The ruling, which has generated concern for its impact on the First Amendment, said other penalties could include “injunctive relief, confinement, a monetary fine or otherwise.”
Is America’s criminal justice system fair? Judge Andrew Napolitano discusses the issue in “Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.”
The judge specifically said the news media would be allowed to continue to use exterior areas of the court property that “traditionally [has] been used as a backdrop while performing newsgathering, photographing, filming, recording and broadcasting functions consistent with journalistic practices.”
“Peaceful demonstrators” also still are allowed.
But not those who were “shouting out that the court system and the judges inside the courthouse were ‘corrupt.’”
The order said actions such as videoing courthouse staff, including judges, in their vehicles violate “the orderly and safe administration of the building,” and he has a responsibility to “maintain the public confidence in the integrity of the American judicial system.”
He wrote that “reasonable restrictions are necessary to limit expressive conduct, speech or dissemination of materials, tending to influence individuals as they enter the courthouse, which serves the reasonable purpose of protecting the actual or perceived integrity of judicial impartiality and independence of the course in the Duval County Courthouse.”
With that, he ruled out of bounds such activities on the courthouse grounds, adjacent sidewalks, the garages, an adjacent building and its sidewalks.
At the Washington Post, legal blogger Eugene Volokh assessed the order and concluded it probably is unconstitutional.
Volokh, who teaches free speech law, religious freedom law, church-state relations law and more at UCLA’s School of Law, said what appears to be the worst constitutional violation is Mahon’s order that includes “all perimeter sidewalks around the courthouse” in the prohibited zone.
“All public sidewalks near the courthouse are ‘traditional public fora’ … in which content-based speech restrictions – and, even more clearly, viewpoint-based speech restrictions such as the one in item 3 – are unconstitutional,” he wrote.
Volokh said some courts have allowed restrictions on speech outside courthouses that advocates jury nullification, but he thinks even that is wrong.
“Whatever courts might say about this sort of specific call for juries to disregard judges’ instructions, this can’t be extended, I think, to general condemnation of the character of judges – public officials (in Florida, elected officials) who must always be subject to public scrutiny and criticism.”
He continued: “Nor is the judge’s order justified by the argument that ‘reasonable restrictions are necessary to limit expressive conduct, speech or dissemination of materials, tending to influence individuals as they enter the courthouse, which serves the reasonable purpose of protecting the actual or perceived integrity of judicial impartiality.’ Government officials can’t protect the ‘perceived integrity’ of their ‘impartiality and independence’ by suppressing speech that accuses them of not being impartial and independent.”
He pointed out that “viewpoint-based restrictions” are not allowed even in areas “within the courthouse complex.”
He said, in his opinion, the ban on videoing also is questionable.
And regarding the order’s claim that “shouting out on the courthouse grounds that the court and judges are ‘corrupt’ during business hours while people are entering the courthouse is entirely inappropriate and disruptive and is analogous to falsely shouting ‘fire’ in a crowded theater,” he turned a tad sarcastic.
“Complete analogous! Except that it’s not a proven false statement of fact, but either an expression of opinion or a statement of fact as to which there has been no trial to determine its falsity. And it’s not likely to immediately start a stampede in which people might be trampled to death. And it criticizes a government official, with the very official being criticized trying to restrict it. Other than that, they are totally the same thing.”
The protesters’ concerns about the integrity of Florida’s judges were not detailed, but judicial ethics have been in the headlines in recent weeks because of the public actions and statements of two members of the U.S. Supreme Court on behalf of “same-sex marriage” while that issue was pending before the court.
Recusal motions had been submitted for both Ruth Ginsburg and Elena Kagan in the case, because both publicly performed same-sex ceremonies.
Joe Miller, who at one time was the youngest U.S. magistrate in the nation, called their actions a violation of the code of ethics for judges.
And WND reported when Alabama Supreme Court Chief Justice Roy Moore said Ginsburg could be impeached for her public advocacy of “gay” rights while the court was reviewing that very issue.
A brief in the case from the Foundation for Moral Law explained: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous. … It would not take a large adjustment.’”
Ginsburg’s interview was with Bloomberg News on Feb. 12.
The foundation’s motion said the “extrajudicial comments about a matter pending before the court violate Canon 3A(6) of the Code of Conduct for United States judges: ‘A judge should not make public comment on the merits of a matter pending or impending in any court.’”
The controversy resurfaced shortly before the decision was announced, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.
The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”