Jail for laughing protester is an outrage

Protesters disrupt Sessions' AG hearing
Protesters disrupt Sessions' AG hearing

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Story highlights

  • Marc Randazza: It's outrageous that Desiree Fairooz is facing prison for her protest
  • Randazza: Whatever your politics, you must defend Fairooz's First Amendment right: dissent, even impolite dissent, is tolerated.

Marc J. Randazza is a Las Vegas-based First Amendment attorney and managing partner of the Randazza Legal Group. Follow him on Twitter: @marcorandazza. The opinions expressed in this commentary are solely those of the author.

(CNN)The news is abuzz with the unfortunate, disturbing, and misleading reports that a member of the group Code Pink was convicted of a crime for merely laughing at Jeff Sessions.

Marc Randazza
The facts are that during Congressional hearings to approve Jeff Sessions as the nation's chief law enforcement officer, Desiree Fairooz laughed, loud enough for distant microphones to faintly record her scoffing at testimony being offered that praised Sessions.
For that, Capitol Police Officer Katherine Coronado removed Fairooz from the chamber. While Officer Coronado dragged her from the Chamber, Fairooz protested -- loudly -- briefly disrupting the session. She was then charged with disorderly and disruptive conduct and parading or demonstrating on Capitol grounds. This week, a jury convicted her of those crimes.
    The press has, for the most part, fixated on Fairooz's laughter at Sessions, as though she has been convicted for that particular outburst. That is not true. The jury foreperson stated, publicly, that the jury did not agree with Officer Coronado's actions, but felt compelled to convict Fairooz nonetheless.
    She was not convicted for laughing, but rather for her disruptive conduct as she was being escorted out of the room. Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt that they had no option but to convict.
    Protester shouts after Sessions approval
    Protester shouts after Sessions approval

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    Protester shouts after Sessions approval 01:07
    With that misleading narrative taken care of, let's get down to what's true. The jurors had another option. They had the option to acquit. Jurors can always decide that convicting someone of a crime is wrong, no matter what. Jurors are empowered to judge the facts and the law. Otherwise, why have a jury of your peers? That the jurors lacked the spine to do the right thing is one of many failures in this case.
    And why should they have acquitted? Because for Fairooz to be facing prison for her conduct is outrageous.
    Should she have done it? No. Disrupting a speech, court, or a congressional hearing is something we should take seriously. I don't care if it is a few students who do not want other people to hear Charles Murray speak or Berkeley rioters trying to shut down Ann Coulter or just activists disrupting a congressional hearing. I do not approve of conduct like Fairooz's without reservation.
    But, the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about. It is a disgrace. Officer Coronado is a disgrace for arresting her. The prosecutor is a disgrace for charging her. The jurors are disgraces for convicting her.
    Add that to the optics ... a government with, at the moment. a bit of an authoritarian bent, in a hearing to confirm our top law enforcement official (who arguably has authoritarian tendencies of his own), allowing a person to be taken into custody, and then the pressing of charges. And now Fairooz faces actual jail time? That is not the image of an America guided by the Enlightenment. That is a metaphor for dark times ahead.
    I hope that the sentencing judge has the same reverence for our constitutional traditions as I do. While her conviction is troubling, he or she should have the power to either commute Fairooz's sentence or give her a slap on the wrist. Even that slap will sting Lady Liberty, but it would send the right message: dissent, even impolite dissent, is tolerated.
    If you do not like Code Pink (I have my issues with them) or any other speaker, you must set that aside.
    The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.
    The picture of them is one of burning crosses, lies told about winning medals of honor, and repellent protests at soldier funerals.
    They can be dirty, ugly, mean, and disruptive.
    No matter what your political tribe, you need to support Fairooz.
    Because when all of those ugly voices sing together, their bitterness blends and transforms into something decent people can find beautiful, even in its brutality — a chorus woven together to sound out the same 45 words -- the same 5 freedoms ... the same First Amendment.