Attorney who fights free speech for others invokes HIS First Amendment rights

New York Law Journal ^ ^ | | 03-06-2003 | | John Caher

[Behind Liberal Lines]

At a time when the Commission on Judicial Conduct is up in arms over the political conduct of a few judges, the agency's chief attorney in Albany, N.Y., is fighting for his free speech rights.

Stephen F. Downs, 61, was arrested at a suburban shopping mall on Monday after refusing to take off a T-shirt that read "Peace on Earth" on one side and "Give Peace a Chance" on the other.

When they were asked by security officers to remove the shirts or leave, Downs' 31-year-old son complied, but the senior Downs refused. The guards then summoned the Guilderland town police.

Ironically, Downs' arrest on a violation comes just as the commission is asserting the right to discipline judges who partake in political activities.

Last month, U.S. District Judge David N. Hurd in Utica, N.Y., shot down as unconstitutionally vague provisions in the Code of Judicial Conduct that restrain the political speech of judges and judicial candidates. That decision involved Albany Supreme Court Justice Thomas Spargo, a former elections lawyer who took part in political activities when he was a candidate for his current position and when he was a part-time town justice. [The] commission is also pursuing charges against at least two other judges who claim they did nothing worse than exercise a constitutional right to express their views on political issues.

Spargo's case...was prosecuted out of Downs' office.

The question of if and how the commission can restrict the speech of judges will apparently be resolved in a higher court. The state plans to appeal the Spargo ruling to the 2nd U.S. Circuit Court of Appeals, and attorneys on all sides say they would not be surprised if the matter eventually goes before the U.S. Supreme Court.

[Behind Liberal Lines]

Another liberal says "free speech for me, not for thee."

[Pukka Puck]

The guy and his son went to the mall looking for trouble. The tee shirt his son was wearing said, "Give the Inspectors More Time" and thus was a more overtly political message than the one worn by the old man.

The plan was for the son to take off his tee shirt and the old man to leave his on and therefore be arrested.

The old socialist fart was not arrested for wearing the shirt and neither would you be arrested for wearing your shirt. The trouble-making lawyer was arrested for trespassing after he was given the option of either taking the shirt off or leaving the mall. He refused to do either so he was arrested.

This was a publicity stunt by anti-American punks.

[Behind Liberal Lines]

The part that kills me is that this punk PROSECUTES others for making political comments and then he thinks he can say whatever HE wants....

Free speech for me, not for thee.

[SquirrelKing]

Yeah, they had this hamster on the Today show this AM, all greased up and ready to talk. He knew what he was doing. He has been followed into the mall by a lumpy crowd sporting home made t-shirts and looking like a Jethro convention. The news actually showed the mall's policy on trespassing, posted right at the entrance, but it didnt stop them from shifting to shots of other brave anti-war protestors, including the high schooler who turned from the flag.

Losers.

[Ann Archy]

What kind of people do this crap...oh he was a LAWYER......never mind. And what a PUNKY looking kid he raised....ick.

[lsee]

Okay, so they were looking for trouble...but why is this offensive political message worthy of arrest when I've seen t-shirts at the mall and elsewhere featuring profanity, immorality, and satanism and these other "punks" go about unscathed?
Are these particular two people under different standards than some other person who might have worn the same t-shirt?

Don't get me wrong...I don't like the message or the attitude, but what legal reason is there for arrest?

[Behind Liberal Lines]

Speaking of unscathed:

The thing that frosts me (and the reason I posted this) is that this lawyer PROSECUTES others for making political comments and then he thinks he can say whatever HE wants....

"Free speech for me, not for thee."

[lsee]

Ah...here's a new story about this issue...Mall Wants to Drop Charges Against 'Peace' T-Shirt Wearer

Officials at a mall where a man was arrested for refusing to remove an anti-war T-shirt asked Wednesday that trespassing charges against him be dropped...

[Pukka Puck]

You seem a little slow.

No one was arrested for an offensive political message.

The lawyer was arrested for trespassing.

Got it?

[FreeTally]

I have mixed feelings on this. What I am curious about is whether there is a sign posted at all mall entrances that lists slogans that can not be worn on shirts. If not, the mall has a tough time claiming this is a rule. And in absence of such posted signs(or a previous trespass warrant), he can not be arrested for trespassing as long as the mall is open to the public. It appears the mall knows this, and is dropping the charges.

[Just mythoughts]

Did you catch Oriley last night, he sure bought their sad sack story, hook, line, and sinker?

[San Jacinto]

The trouble-making lawyer was arrested for trespassing after he was given the option of either taking the shirt off or leaving the mall

Exactly. There is no crime in wearing the T-shirt, but when the owner of private property asks one to leave and he refuses, the crime of trespassing has occured.

[VRWC_minion]

I don't believe anyone has free speech rights on private property.

[attagirl]

Let me get this straight--You are comfortable with an America that prosecutes someone who wears a TEE SHIRT(!) with a message of peace? Note the lack of any vulgar language or other provacative sentiments.

Our founding fathers would not back you on this and would be turning over in their graves..

Furthermore, I read another account which said that on the original arrest charge this man was allegedly bothering other customers. Even the mall management/owners knew that simply wearing this shirt didn't constitute a legal violation so they had to make up another. (I believe this to be true because nowhere in the article cited above was this aspect brought out).

As far as the stricture that judges not take part in political activities, I hardly think this constitutes that. It means they should be above PARTISAN activities.

And in case you are wondering, I am not a liberal.

I believe in freedom for all.

[attagirl]

Here is the news story I was alluding to: http://www.foxnews.com/story/0,2933,80292,00.html

[Behind Liberal Lines]

If you read my initial comment AGAIN, you know, after a cup of coffee and with both eyes open, you'll see my point was that HE was a hypocrite to prosecute others for THEIR free speech rights and then complain if someone tried to prosecute him. No more, no less.

And your comments re: judges political activities versus partisan political activities is wildly off the mark. How can any political activity be anything BUT partisan?

Furthermore, the attorney's activities in prosecuting judges has already been overruled an infringement on free speech. So the courts obviously don't share your view.

Finally, and as an aside, they aren't prosecuting him for wearing the t-shirt, they are prosecuting him for trespassing on private property after being told by the owner to leave. Like it or not, just as the First Amendment gives him the right to wear the shirt, it gives the property owner the right to say "don't wear that here," just as it would give YOU the right to remove someone from YOUR private property if they said something YOU didn't agree with.

So, fine, you're not a liberal. But you're not right in this case.

[SquirrelKing]

"You are comfortable with an America that prosecutes someone who wears a TEE SHIRT(!)"

What did I say that sounded like this? Lets see...I mentioned trespassing...his readiness to get publicity...nope, nothing against T-shirts.

Easy. Friend...friieend...

[theoverseer]

If I remember correctly, didn't the Supreme Court define malls as a modern-day "commons" and forbid mall owners from banning political leafletting in malls? (This case came up during the first Gulf War)

[FreeTally]

Hmmm, you include me in the response line, but I never engaged you, nor do I think anyone you included even knows who you are responding to.

If you wish to answer the question I posed to the other freeper, feel free. Otherwise, keep me out of your reply line. I have no idea who you are responding to, and it surely isn't me.

[AppyPappy]

You are comfortable with an America that prosecutes someone who wears a TEE SHIRT(!) with a message of peace? Note the lack of any vulgar language or other provacative sentiments.

Let me get this straight. You are comfortable with a property owner being told he cannot ask someone to leave his property? It seems to me the mall owner should be allowed to kick out anyone he wants.