Monday, May 7, 2012

Press, Protest, and Prosecution: Constitutional Limits in Santa Cruz?

Two Indybay photojournalists are seeking dismissal of charges against them including conspiracy to commit vandalism/trespass in conjunction with an Occupy event in an otherwise vacant building in Santa Cruz last November. 

Santa-cruz-eleven-may-4-2012-11According to the motion to dismiss filed by the defendants, Bradley Stuart Allen and Alex Darocy, were singled out.  They aver that they were only in the building a short time and only some of the persons in the building for the four night occupation were prosecuted.  Indeed, they argue that during "the four days, at least one member of the Santa Cruz City Council entered the building, but she was not among those charged with any crimes" and likewise a "photographer from the Santa Cruz Sentinel, (the County’s principal newspaper) also entered and took photographs, but he has not been charged."  They therefore argue that the charges are selective prosecution in violation of the Equal Protection and Due Process Clauses.

The ACLU of Northern California has filed an amicus brief in support of the motion to dismiss on the grounds of the First Amendment.  The ACLU memo focuses on "vicarious liability" and finds especially problematical statements offered by the State at the preliminary hearing such as the defendants “were there to publicize the protest for the group. The photographs they took, the articles they posted... The defendants served as the public information officers for the occupiers ....” 

The ACLU memo argues that the defendants are entitled to First Amendment protections: "the constitutional protections for the press extend beyond the institutional press to anyone who would gather information about matters of public interest and disseminate it to the public, citing both Citizens United v. Federal Election Com'n, and the recent First Circuit case of Glik v. Cunniffe.  Moreover, "the Occupy movement, and the actions of November 30, are clearly newsworthy; indeed, advocacy for social and political change lies 'at the core of the First Amendment.'"

At the heart of the ACLU's argument is the contention that "had they published photos that portrayed the Occupiers in a bad light the government could not be making these arguments and, accordingly, would likely not be prosecuting them."  Thus, the ACLU argues that it is the "content and viewpoint of their reporting" that has resulted in the prosecution.

The ACLU's First Amendment argument of viewpoint/content discrimination under the First Amendment is parallel to the Defendant's argument of selective prosecution violative of the Equal Protection and Due Process Clauses.

The hearing is set for May 8.

RR
[h/t Trial Insider]
[image: May 4 Rally for Charges to be Dropped by Prosecutor Bob Lee via]

http://lawprofessors.typepad.com/conlaw/2012/05/press-protest-and-prosecution-constitutional-limits.html

Criminal Procedure, Due Process (Substantive), Equal Protection, First Amendment, Speech | Permalink

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