States Regulating Protests

Episode Notes

Transcript

[Music]

Jeff Lewis: When you read the headline, you get concerned but if you drill down on the actual guts of the law, it only immunizes somebody from civil liability if the person who was hurt is convicted by a jury of the felony of variety. And so, there’s a lot of steps you have to get before a plaintiff is deprived of their cause of action arising from driving through a crowd.

[Music]

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

[Music]

Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams coming to you from Southern California. I write a legal blog named “May It Please the Court” and have two books out titled “How to Get Sued” and the “The Sled.” Well, according to the Hill, Republican Lawmakers in 34 states have introduced more than 80 anti-protest bills thus far in the 2021 legislative session. In Florida, Governor Ron DeSantis recently signed an anti-riot bill into law in that state in part that a driver may avoid liability for injury or death caused if fleeing for safety from a mob.

An Oklahoma Governor, Kevin Stitt signed a similar bill into law, as well requiring the driver unintentionally harms protesters in fleeing said protests. So, is this legislation constitutional? Does it infringe on an individual’s first amendment right to peacefully protest or is this a necessary deterrent to combat violence of protests? Today on Lawyer 2 Lawyer, we’ll be discussing states regulating protests through legislation. The First Amendment and the impact on those who protest as well as some of the police reforms. And to do that, we’ve got a great show for you today our guest is Attorney Jeff Lewis from Jeff Lewis Law; Jeff has been practicing law in Southern California since 1996 and probably Jeff, you’ve been a friend of mine since then, I think.

Jeff Lewis: Yeah, since the early days of blogging.

Craig Williams: That’s right. Well Jeff is a certified appellate specialist by the California State Bar. He focuses his practice in four areas; Appellate Law, First Amendment Litigation, General Litigation and land use in the Palos Verdes area. Welcome to the show jeff.

Jeff Lewis: Thanks for having me, Craig.

Craig Williams: Well, as we talked about in the beginning let’s get a little bit of background on how states are making attempts to regulate rioters.

Jeff Lewis: Okay. Well, the two big states that everybody is talking about is Florida and Oklahoma and the new laws passed there and Florida has grabbed some headlines with a law that would immunize people involved in car accidents or driving through a crowd at a protest. Those types of folks are immunized from civil liability, so that’s grabbed some headlines. But there’s some other interesting parts of the law that haven’t grabbed headlines that I’d love to talk to you about.

Craig Williams: Yeah, let’s talk about the constitutional foundation of it first. I’m digging back in the Con Law I and thinking we’ve got our First Amendment Right of Free Speech here which triggers strict scrutiny and a limited to time place and manner regulations. So, do I have that right or what has been the changes since — I hate to say it since we graduated from law school?

Jeff Lewis: The analysis is correct but since law school, we have things like Doxing, Twitter and other issues of technology. But your constitutional framework is still solid.

Craig Williams: Okay good, well let’s talk about some of those oddball things that are going on and what these states are trying to do.

Jeff Lewis: Yeah. So, it’s really interesting. Now personally, I think the existing laws that are on the books are more than sufficient to address the issues that some of these states are facing. But due to political pressure, these new laws have been passed and this one in Florida defines a new crime called “Mob Intimidation” which makes it unlawful for any three people to meet together to use a threat of force, to force another person to assume or abandon a point of view, “Mob Intimidation” new crime.

Craig Williams: Wow, that sounds like something that King George would have whipped up back in the 1770s.

Jeff Lewis: Yeah, this is the most concerning part of the law. It’s ripe for abuse, there’s a lot of discretion there for police and prosecutors to declare what is a mob. If you and me down in Newport Beach are complaining at a Starbucks about the quality of the foam on the lattes, we’re not going to get charged. We know the kinds of people that are going to get charged under this law.

Craig Williams: Right and certainly that raises people’s hackles, what about this business of granting civil immunity to people who drive through protesters blocking a road? That just sounds insane.

Jeff Lewis: You know, it does and it doesn’t. When you read the headline, you get concerned. But if you drill down on the actual guts of the law, it only immunizes somebody from civil liability if the person who was hurt is convicted by a jury of the felony of rioting.

(00:05:10)

And so, there’s a lot of steps you have to get before a plaintiff is deprived of their cause of action arising from driving through a crowd.

Craig Williams: Well, given that the people who are reading the headlines and not reading the articles and going into the depth that we’re going to go into in this podcast; what difference does that really make? I mean people who read the headline think “I can now drive through a group of protesters.” 

Jeff Lewis: Well, but it’s not that easy. I mean, well let’s just say this, someone who reads that headline might have that as the take away in terms of what they do. Maybe a little more freedom to drive through a protest. But the reality is when it comes to the application of the law and the legal consequences, I don’t think there’s going to be a lot of legal consequences because I don’t imagine that many people convicted of the crime of rioting or mob intimidation down in Florida are going to be in the position of a plaintiff filing a lawsuit. 

Craig Williams: No, probably not. Well in Minnesota, there was a bill proposed in their state senate earlier this month that prevents those convicted of an unlawful protest violation continuing to receive student loans or other forms of financial aid, including financial benefits. Is that far reach or is that a reasonable restriction?

Jeff Lewis: Craig I hadn’t heard about that one but I suspect that one’s going to last about five minutes. I suspect if it hasn’t already been challenged in Court, it will be just like the Florida one has been challenged in Court. 

Craig Williams: Well, let’s talk about — you kind of alluded to the fact in the beginning that these laws are rather vague. They give the prosecutors and the police a lot of discretion and you know; a lot of times laws get passed that way and the Court’s job is to narrow these things down and define what the edges are. Is that a situation here or are these just vague to begin?

Jeff Lewis: These are vague to begin with. I think a number of these provisions are going to end up being tossed out of Court by this lawsuit pending in Florida. Let me let me highlight two interesting parts of the Florida Law. One for certain crimes involving mob intimidation or rioting, you’re going to be denied bail. Meaning you can’t be released from jail immediately and instead you have to spend jail overnight until your first Court appearance, which is unusual. Normally in a protest, people who are arrested, they are given the equivalent of a ticket and let go a couple hours later. So, the fact that people are going to be forced to spend a night in jail, I suspect that particular provision of the law will be easily undone. 

Craig Williams: Right, because it’s so different from the existing method of treatment.

Jeff Lewis: Exactly and one could argue it has the intent of trying to deter, if not the effect at least the intent of trying to deter people from participating in protests.

Craig Williams: I seem to remember my law school professor calling it chilling(PH) free speech.

Jeff Lewis: Yeah, that’s the ultimate in chilling free speech. I’ve got teenage kids that like to go out to protest and I won’t tell you which side but they love to go out to protest. And normally, I wouldn’t have a concern but if we lived in Florida and I thought they were going to spend the night in jail. I’d be a lot more concerned about letting them go out and attend a protest.

Craig Williams: Well, it seems like there’s a lot of dangers in protests these days, perhaps more or so than we saw — I’d like to think it’s more or so than we saw in the 60s, and the 50s, and the 70s. But looking back at Kent State and a number of other situations like that, it seems like this has been going on for a long time. There’s a cadre of Americans that do not like protests.

Jeff Lewis: Yes, and the question is do you deal with this with existing laws or do you deal with the problem with protests with adding new laws to the books? I think the existing laws are sufficient.

Craig Williams: And what about the issue of federalism here? I mean we have states enacting different laws about protests and if you go along with them, believe that many protesters are busting from different states as it was — some in the 60s as well. What effect does that have? 

Jeff Lewis: You know, that’s an interesting point. Florida is trying to stand out and get ahead of the other states by being the most aggressive about protests. The First Amendment exists as a floor of minimum First Amendment Rights. So, in terms of keeping the states even and uniform in terms of a minimum protection for the First Amendment for protests. I would expect that these lawsuits will have a way of kind of winnowing away the most obscure and aggressive parts of these new laws. So that there is some uniformity among the 50 states.

Craig Williams: And how far up the appellate chain do you think these things are going to go before that happens? Do you think if it makes it up to the Supreme Court, do you think that we’d be seeing upholding some of these laws these days?

Jeff Lewis: Yeah, that’s a great question. I think A, they will go all the way to the Supreme Court at least the Florida Law. I think this Court could uphold some of these decisions now. It’s too early to say, there haven’t been any real hearings on motions for preliminary injunction where the records developed with facts in terms of as applied challenges. But I think this Supreme Court could uphold some of these laws.

Craig Williams: You know and we talk as lawyers about — especially plaintiffs’ lawyers and civil rights lawyers.

(00:10:13)

Always about picking the right case. I mean there’s — you know, George Floyd was the right case to pick to challenge some of these things. What kinds of things would a civil rights lawyer want to see in a protester to take these cases on? Are they — have a violent protester, a non-violent protester? What set of circumstances do you think would find the best foundation to form a case that says “We’re going to challenge this all the way up” and then on the other hand what’s the worst?

Jeff Williams: Yeah. You know, I would think if I were challenging the laws I don’t want to focus on the non-violent protester. The person is more of a casual protester who might join in on a process as opposed to being an organizer. Who actually feels chilled, who actually says you know what? I’m going to stay home tonight because I don’t want to end up in jail. I don’t want to have a felony on my record if a cop decides that I’m one of the three that have made up a riot. So, I think that would be the best kind of plaintiff and optics-wise of course, a violent person who has a track record of engaging in violent protests would probably be the worst kind of plaintiff to have.

Craig Williams: Let’s talk about this potential legislation and let’s move — Heather Heyer the Charlottesville counter protester that was killed in Florida; what happens in that circumstance under this new law? Does the driver get protected?

Jeff Williams: Yeah, that’s interesting. So of course, that was in Charlotte, we’re talking about a Florida Law but if this law were applied to that situation. I believe her mom has brought a $15 million wrongful death lawsuit and because Heather has never been convicted of a crime, in connection with a riot or inciting a mob, this law wouldn’t apply, this new law would not provide an affirmative defense to the wrongful death lawsuit that’s now pending. 

I’ll tell you one interesting part of the law that hasn’t gotten any headlines that I find interesting, I do a lot of law in terms of defamation in Twitter and Facebook. And one aspect of a Florida law makes it a crime to dox. If you publish someone’s information on the internet with an intent to harass or cause violence to that person, the person you’re doxing that’s now a crime in Florida. And think about this, how many times have you seen on Twitter the phrase “Twitter do your thing.” That new law makes that illegal.

Craig Williams: And what exposure does Twitter have for that beyond the individual poster?

Jeff Lewis: Well, under current law, Twitter wouldn’t have any liability under Section 230 as in its present form but you know, there’s lots of talk about reforming Section 230. 

Craig Williams: Well, you talked about some oddities that are in this bill. Let’s talk about the protection of confederate monuments along with memorials and statutes — I’m sorry statues, listen to me and historic property.

Jeff Lewis: Yeah. It’s a felony now in Florida to destroy a monument and not you’d be convicted of this crime but you could be ordered to pay full restitution of the cost to repair or replace the monument; it’s a big deal.

Craig Williams: That sounds expensive.

Jeff Lewis: You know, I don’t practice law in Florida. I don’t know how they define what is and isn’t a monument but it seems to be a slippery slope in terms of as applied and facially how you convict people for destroying things that are referred to as monuments. And are there civil war era monuments that are going to be protected by this law or more modern monuments? There’s a lot of questions here.

Craig Williams: Let’s assume that someone is upset about a confederate monument in their town on and you know, let’s take the largest example of — Stone Mountain in Georgia that’s protected under this statute or if it was in Florida. But what rights do people have to express their frustration or as we’ve seen it people have torn down these monuments. They poured red blood all over them or paint and they’ve done other things. Protests are violent in many instances and obviously, destruction of public property is not appropriate but is there anything that people can legitimately do other than stand there with signs around a monument and say “Tear this down”?

Jeff Lewis: Yeah. That’s a great question. Under Florida law, there those kinds of people that do anything other than hold a sign that do anything that would destroy the monument, are in jeopardy of criminal prosecution. Now they could rely on prosecutor discretion in terms of prosecuting crimes or police officer discretion in terms of who they arrest or ultimately judicial discretion in terms of criminal defense lawyer asserting First Amendment as a defense to a criminal charge. But the reality is, you’re probably not going to take any steps to destroy a monument if you know you’re going to face a felony conviction in Florida.

(00:15:07)

Craig Williams: So, you’re left with perhaps the alternative of filing a lawsuit. Do you think a civil rights lawsuit against a monument would have any traction?

Jeff Lewis: That’s a great question. Yeah, to have it declared not worthy of historical monument protection or carved out of this criminal law? That’s a great idea.

Craig Williams: Or if I were going to challenge it, I would think that the way I would do it would be to say that the monument should not be in a public space it should be in a private museum?

Jeff Lewis: Yeah, that would be a great idea. Although a group has filed a lawsuit challenging the law already, so it would be interesting to see if the law regarding monuments as a whole is struck down as opposed to protecting or de-protecting individual monuments. 

Craig Williams: And so, where does this bill take us if we were to take something like this and let it sweep the country, every state and exit. Could we have the type of protest cities that erupted in Portland?

Jeff Lewis: Well, let’s talk about Portland do you think what happened in Portland was a result of not having strong enough law on the books? Or simply because the police or the politicians made decisions about how they were going to enforce the laws? I tend to think it’s the latter and that passing new laws isn’t going to change what happened in Portland or prevent other cities from becoming Portland. It’s more about addressing the underlying angst of the community regarding police practices then having the right anti-riot bill on the books.

Craig Williams: Well definitely, there’s been a lot of challenge to police actions. What level do you think that our former president has played in all of these challenges and this type of thing becoming to the floor?

Jeff Lewis: Well, he certainly has normalized violence and disregard for norms and disregard for the rule of law in a way that no prior president has. 

Craig Williams: And you think that’s emboldened people to protest violently or do you think that it is emboldened people to kind of clamp down on these protests?

Jeff Lewis: I think both. I think that’s a great question. I think both, I think people feel emboldened in a way that we’ve never seen in the history of our country look what happened in January in terms of the — what used to be a peaceful transfer of power in our country. And it’s also emboldened people to pass these aggressive laws in Florida where they want to actually chill protests, prevent people from coming out on the streets.

Craig Williams: You know, and one of the things that surprises me that how much this violence has erupted into the planes and air flights around the country. Do you think that this kind of brute — or angst that we’ve been feeling is taking itself out on authority?

Jeff Lewis: Yeah. You know it’s been a perfect storm if you think about the president and you think about the angst of being locked in our homes due to covid and the angst of parents not sending their kids to school. It’s all kind of created this huge kind of pressure cooker and we’re now seeing the results of that.

Craig Williams: Right. So, we’re counselors as well as attorneys; what’s your solution there, counselor? How are you going to solve the world in this problem?

Jeff Lewis: I’m not sure the podcast is long enough to address that but I would say this. I think the focus should be more on dealing with the angst of the most of the protesters who hit the streets and are concerned about police practices. You’re never going to quell or satisfy the extremists, the violent protesters, the people who want to see the cities burn. But the real focus here should be on reforming the police. 

Craig Williams: Right. What steps do you think should be taken when there’s this big noise about defunding police? Do you think that some of the first steps people have asked for, have been sending mental health people and social services on non-violent, less aggressive homelessness and some of the crazies that end up getting shot? Is that a good solution?

Jeff Lewis: Yeah. You know, boy I hate that tagline “defund the police” but the concept behind it, the shifting resources and trying something a little different. I mean things are so bad with police practices in this country. With sending mental health professionals out to a homeless situation or a mental health situation could that be any worse than our current situation? It’s hard for me to imagine.

Craig Williams: And what other — I didn’t mean for this whole thing to morph itself into police reform. But since we’re there, what steps would you take?

Jeff Lewis: Well, that’s a hard question to answer. Hearing from the community, listening, looking historically at what’s happened in terms of use of force and the disproportionate impact on our communities of color and shifting how we’ve been doing things. You know, one definition of insanity is doing the same thing over and over again and expecting a different result. 

(00:20:08)

Let’s try something a little bit different in how we respond, how we need to handle traffic stops. How we come out to domestic violence situations and the big issue probably by numbers and dollars — the biggest issue is how we deal with drug crimes and people who are under the influence in terms of law enforcement versus treatment.

Craig Williams: Right and what situations arise — I mean I have read through the situations where black people have been killed all around the country and it seems from just participating in daily life sometimes is enough. What do you think about that proposal to change the level of education of police officers to someone who’s graduated from college?

Jeff Lewis: Yeah. You know, that would be interesting to see what impact that would have on recruitment. I don’t know, here in Los Angeles, I think sometimes they have trouble filling the slots they have or the slots they need for our police department here in LA. I would be curious to know before they flip the switch on that proposal whether or not there’d be enough volunteers to fill the legitimate policing needs. On the other hand, if you’re sending out mental health professionals or other resources to more situations that the police traditionally have responded to, maybe those two in tandem could work. 

Craig Williams: Let’s take a look at just the concept of violence and protesters you know; we remember Gandhi a non-violent protester who was extremely successful and certainly there’s been a significant destruction of property; people have been injured and killed. What obligation protesters have to be peaceful? Maybe the obligation is not the right word. Do you think if they turned peaceful in the ways that Martin Luther King encouraged in the ways that Gandhi encouraged? Do you think that these laws would then come into play? Do you think that we could ever find a leader like that and not have him get assassinated? There’s a lot of questions done back.

Jeff Lewis: There’s no question that the violence in Portland and other places, you could draw a line between Portland and the violence in these new laws. If there was more adoption of non-violent protests, that we wouldn’t see these new laws but the problem is many times, you have non-violent organizers, organizing a non-violent protest and then you have outsiders come in who put gasoline on the fire and who’s to blame in that situation? Is it the original protesters who were trying to have a peaceful protest or the outsiders and how do you deal with that?

Craig Williams: And you also have situations where you had some instances where police themselves have donned protester outfits and come in and become agitators. Is this a human nature? Are we just tribal and we’re never going to get out of it?

Jeff Lewis: Yeah, this will be a problem for a long time to come as long as you have communities that feel that they’re not being represented, that they are being oppressed that the police mistreat them and the police feel like they’re misunderstood that they’re micromanaged and they’re judged just for doing their job.

Craig Williams: Depends on what you define as “just doing their job” because some of the just doing their job hasn’t been too good.

Jeff Lewis: Hey, I’m not a defender of the police in general but let me just say there are great police officers, there are great men and women who are on the force protecting us and who call — who respond to a call when 911 is dialed. And those folks should be applauded for what they do but there’s a systemic problem in these police departments that have to be addressed.

Craig Williams: Well yeah, we’ve seen it in Los Angeles. I mean, you know we just read a few reports coming out about how deeply gangs go into the sheriff’s deputies and how long it’s been there.

Jeff Lewis: Yeah. It’s really systemic in LA.

Craig Williams: And I would imagine in other large cities as well. I mean there’s nothing unique about Los Angeles.

Jeff Lewis: Right. Yeah absolutely, it’s a cultural problem with the police. When the police start wearing tattoos and imitating the gangs that they’re supposed to be policing, that’s a problem.

Craig Williams: Right. But how do you separate that? I mean it’s one of the things that there’s probably an old Star Trek episode on it. You know, what happens when you put the guards and the prisoners together? Do they really separate or they become homogenous?

Jeff Lewis: There is no solution to that problem. That problem will exist as long as we have a society epic(ph). 

Craig Williams: The Stockholm Syndrome is a variant of it I would think. Jeff, this has been a fantastic discussion but the time has come for us to wrap up and get your final thoughts along with your contact information. So, I’ll turn it over to you.

(00:25:04)

Jeff Lewis: Well, let me just say I’m disappointed by these new laws in Florida and a similar law in Oklahoma. They’re an overreach to solve a problem that existing laws can already solve. And I think people need to be more thoughtful about applying our existing laws rather than trying to make a headline with a new law. It’s been a pleasure to talk to you about these issues if people want to contact me, my website is jefflewislaw.com and I do have a podcast, California Appellate Law Podcast which people can google.

Craig Williams: Great and it’s J-E-F-F L-E-W-I-S.com, right? 

Jeff Lewis: J-E-F-F L-E-W-I-S.com, jefflewislaw.com.

Craig Williams: Perfect. Thank you so much. Well Jeff, thank you, it’s been a pleasure having you on the show.

Jeff Lewis: Yeah, thanks for having me.

Craig Williams: And for our listeners, if you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening.

Join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

Intro: Thanks for listening to Lawyer 2 Lawyer. Produced by the broadcast professionals at Legal Talk Network. Subscribe to the RSS feed on legaltalknetwork.com or on iTunes.

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Continue Reading