According to Justice Anthony Kennedy, the Constitution provides all Americans a right to "equal dignity in the eyes of the law."1 That's nice in theory I suppose, but in the America where I grew up dignity had to be earned, and maintained, by correct behavior and continued demonstration of good character. Dignity built up over many years could be thrown away in seconds by one rash or foolish act.
That's just what Judge Mark Mahon, Chief Judge of Florida's Fourth Circuit Court in Jacksonville, is doing to his own dignity. Over the course of a lazy three day weekend, Judge Mahon beclowned himself and disgraced his office. He did so by subverting the United States Constitution, which he is sworn to uphold and protect, in a vain attempt to protect that now vanished dignity.
Here's the story.
Photography Is Not A Crime ("PINAC") is a Miami-based journalistic organization and website founded by Carlos Miller, which focuses on Americans' freedom to photograph public places and public officials in the performance of their duties. Their motto, "Be The Media," reflects that any American, armed with a camera or a cellphone or a laptop at the right time and place, can perform journalistic service as valuable as that of the stuffiest reporter at the New York Times.2 To put it another way, the "freedom of the press" guaranteed by the First Amendment doesn't protect a profession of Clark Kents running around with "PRESS!" cards in their hats, but an activity, the gathering and dissemination of information of public concern, that any American can perform. Armed with a cellphone camera or a laptop and the right instincts, all of us can be journalists.
Unfortunately for PINAC radical notions as universal press freedom, or for that matter that you can point a camera at a cop in public, are not well understood by the dumb beasts who make up our police forces. They get hassled. They get arrested. A lot. And as befits activists who record cops, they demonstrate. A lot.
Recently one of PINAC's reporters had the bad luck to wind up in court in Jacksonville, for demonstrating against the TSA outside the Jacksonville airport. As this affects PINAC directly, they decided to cover the trial. And here's where Judge Mahon self-beclowned, and made himself a petty tyrant.
In response to a PINAC photographer's holding an uncomplimentary sign outside the Jacksonville courthouse, Judge Mahon issued a breathtakingly overbroad order, targeting (of course without saying so) PINAC, prohibiting photography on public sidewalks surrounding the courthouse and also (as Eugene Volokh points out) some sidewalks across the street from the courthouse. This is because photographs from such vantage points, in Judge Mahon's mind, pose a serious threat to the safety of courthouse occupants, from terrorists or bank robbers or criminal mopers I suppose, even though you can see photos of every inch of the courthouse exterior on a Google street view.
But that's only the beginning. Judge Mahon goes on:
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.
In other words, handing passersby a print-out of this post, in which I am about to say that Judge Mahon is biased, dishonest, partial, prejudiced, and a stone idiot who has no business presiding over parking ticket appeals3, is prohibited on courthouse grounds, and on surrounding sidewalks, and even some sidewalks across the street, in Jacksonville, Florida.
Judge Mahon orders that anyone caught demonstrating or disseminating print calling his wisdom into question be arrested, jailed, and subject to fines or prison for criminal contempt.
This is flatly unconstitutional. Demonstrations and leafleting are protected speech under the First Amendment. So, for that matter, is flag-burning and walking around on stilts as a giant puppet of Uncle Sam. Burning a giant photograph of Judge Mahon, a public figure and a judge no less, would be protected speech.
And sidewalks surrounding a courthouse are a public forum, the sort of place the founders envisioned protest, and flag-burning, and giant puppets, and burning giant photographs of Judge Mark Mahon. Indeed, the United States Supreme Court has held that its own adjoining sidewalks are a public forum where demonstrations, leafleting, and giant puppets are allowed.
The sidewalks comprising the outer boundaries of the Court grounds are indistinguishable from any other sidewalks in Washington, D.C., and we can discern no reason why they should be treated any differently. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities, and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.
Demonstrations, signs, and leaflets outside public courthouses may be quite triggering for the sensitive souls who work there, but they have an alternative: GET A REAL JOB IN THE PRIVATE SECTOR. You can put black robes on a goon like Mark Mahon, but a goon he remains. He has no business enforcing the law, much less making up new law of his own goonish devising.
Anyone entering my office dressed as a giant Uncle Sam puppet will be ejected immediately with all force that I can reasonably muster. But the Constitution doesn't concern itself with speech in my office. And it's my office. The Jacksonville courthouse isn't Mark Mahon's office. It's a public office, which he holds in trust for the people of Duval County.
One from which he should be ejected with all due haste. Preferably into a wood chipper.
PINAC is suing Judge Mahon.
- Obergefell v. Hodges, United States Supreme Court, slip opinion, p. 33 (2015) ▲
- For instance, this post, though written for free by a mere blogger, is more valuable to the American republic than all the collected bloviations of David Brooks and Thomas Friedman put together. ▲
- I have no evidence that Judge Mahon is corrupt, in the sense of accepting bribes. ▲