Judge Orders Man Who Violated Recording Ban To Publish An Essay About Respecting The Court AND To Delete All Negative Comments From Readers

from the you-weren't-doing-anything-with-your-free-speech-rights-anyway dept

Eugene Volokh of the Volokh Conspiracy highlights a very unusual court order that seems to think the First Amendment is only for people who haven't pissed off judges.

The background of the case is this: Davin Eldridge frequently attended proceedings at the Macon County Courthouse. Despite signs stating that recording devices were prohibited in the court, Eldridge brought in recording devices and recorded proceedings.

He was caught on more than one occasion, with Eldridge's latest attempt at not-all-that-much-subterfuge-tbh interrupted by the presiding judge. From the court order [PDF]:

While in the courtroom, defendant was observed sitting on the second row with a cell phone, holding it "shoulder-chest level" towards the front of the courtroom. The officer went over to defendant and instructed him to put his phone away. Defendant replied, "I'm not doing anything." The Honorable William H. Coward, Superior Court Judge of Macon County, was presiding over a criminal matter at that time. Judge Coward was informed that a live posting of the hearing in session was streaming from a Facebook page. Based on that information, Judge Coward interrupted the hearing to issue a reminder that recordings of courtroom proceedings were prohibited by law. At the conclusion of the hearing, Judge Coward viewed the Facebook postings by defendant, which included footage of the inside of the courtroom and the prosecutor presenting his closing argument.

Eldridge was ordered to return to the court later that day to be spoken at by Judge Coward. Eldridge did not do this.

Four days later, the court ordered Eldridge to show why he should not be held in contempt of court for his recordings and his failure to return to the court on November 28. Eldridge responded by trying to have Judge Coward recused. This was denied and Eldridge was given a 30-day jail sentence.

Eldridge appealed this finding of contempt and the denial of his recusal request. The North Carolina Appeals Court affirmed everything Judge Coward's court had handed down (including Judge Coward's non-recusal). Unfortunately, this means the state Appeals Court saw nothing wrong with the punishment handed down by Judge Coward -- one that looks like a whole lot of imposition on Eldridge's First Amendment rights and the introduction of some unjustified (and likely impossible) moderation demands.

Along with a suspended sentence and fines and fees, the court ordered Eldridge to do this:

[D]raft a 2,000-3,000 word essay on the following subject: “Respect for the Court System is Essential to the Fair Administration of Justice,” forward the essay to Judge Coward for approval, and following approval, post the essay on all social media or internet accounts that defendant owns or controls or acquires hereafter during his period of probation and attributed to defendant, without negative comment or other negative criticism by defendant or others, during said period of probation…

Compelled speech is fine, says the Appeals Court. Actually, it doesn't say exactly that because Eldridge never bothered to raise a First Amendment argument. But that's the end result of this opinion, which upholds the sentence handed down by Judge Coward, including the compelling of speech by Eldridge and -- even more questionably -- demands he police his post for any negative comments from third parties and remove them. But the court condones this imposition on Eldridge, which implicates not only his First Amendment rights but those of readers of his posts.

Such conditions are reasonably related to the necessity of preventing further disruptions of the court by defendant’s conduct, and the need to provide accountability without unduly infringing on his rights.

I doubt that. The other punishments might be reasonable and not "unduly infringing" but Coward's court isn't going to end up any more respected by Eldridge just because it forced him to write an essay about respecting the court. It may deter him from blowing off the "No Recordings Allowed" signs in the future but it won't change anyone's minds about Judge Coward's apparent lack of respect for Constitutional rights.

This is pointed out by the dissenting opinion, which says this part of Eldridge's sentence is just completely wrong.

The probation condition imposed by the trial court requiring Defendant to write and publish an essay about respect for the courtroom on his social media and internet accounts and to delete any negative comments made by third-parties on this essay bears no reasonable relationship to Defendant's rehabilitation or to his crime and raises serious First Amendment concerns.

The dissent is okay with the compelled speech -- the writing of the essay. This "bears a reasonable relationship" to the contemptuous recordings Eldridge engaged in, says the dissent. Policing comment threads? Not so much.

It holds Defendant responsible for what is essentially the behavior of others; and while there is some truth to the adage that we are only as good as the company we keep, the relevant community in this context is incredibly diffuse, extending through cyberspace. The lack of reasonable relationship between Defendant’s crime and his rehabilitation to the requirement that he monitor comments made on the essay and delete any critical comments violates the statutory requirement contained in N.C. Gen. Stat. § 15A-1343(b1)(10). My vote therefore is to vacate this condition of his probation.

Good call, although the compelled production of an essay on respecting the courts seems just as troubling as the requirement to monitor it for negative comments. Either way, it doesn't matter. The dissent has weighed in but it's the majority's opinion that matters. The First Amendment is no match for an angry county judge.

Filed Under: 1st amendment, compelled speech, content moderation, court order, davin eldridge, free speech, respect, william coward


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  • icon
    That One Guy (profile), 11 Dec 2019 @ 2:57am

    If he can't do it might as well pick up the torch...

    “Respect for the Court System is Essential to the Fair Administration of Justice,”

    Since the defendant can't say it might as well point out that 'respect' for the court system works a hell of a lot better when they're acting in a manner deserving of respect, and between forced speech and a demand that the defendant moderate the speech of others lest they say something less than flattering to the goon in robes and their absurd ruling, they aren't exactly showing much cause for respect.

    Or put another way, it's much easier to respect the court system when those working within it respect the rights of those that find themselves before the system in question.

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    • identicon
      Adam, 11 Dec 2019 @ 6:32am

      Re: If he can't do it might as well pick up the torch...

      One could easily draw comparisons with recent speeches from AG Barr. Respect should be earned, not given.

      reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 11 Dec 2019 @ 4:27am

    I can agree with exceptions made for, and during, individual cases (e.g., needing to protect a witness’s identity). I can also agree with certain stipulations on recordings (e.g., not showing the jury). But what makes recording even one second of a court proceeding that would ostensibly be open to the public anyway such a horrible crime that a literal Coward felt he had to violate a man’s First Amendment rights in response?

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    • identicon
      Anonymous Coward, 11 Dec 2019 @ 5:41am

      Re:

      needing to protect a witness’s identity

      Fuck that. The public needs to know where evidence is coming from. Hiding it destroys the credibility of the proceeding.

      not showing the jury

      Fuck that, too. The public needs to know who's deciding things.

      what makes recording even one second of a court proceeding that would ostensibly be open to the public anyway such a horrible crime

      It interferes with the judge's traditional ability to rewrite the record at will.

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      • icon
        Stephen T. Stone (profile), 11 Dec 2019 @ 5:48am

        The public needs to know where evidence is coming from.

        If a witness suddenly turns up dead because their identity was leaked to the general public, well, I suppose that’s life, huh?

        The public needs to know who's deciding things.

        It does: Twelve people chosen from the general public. Who those people are doesn’t really matter outside of the court.

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        • icon
          Ben (profile), 11 Dec 2019 @ 6:24am

          Re:

          I have been on a jury. And would be happy to do it again.
          I would not have been happy to be on that jury (and I would not be happy to do it again) if my name & image were reported alongside the case. There are some nasty people involved in criminal cases, with nasty attitudes towards jurors.

          If you want a reasonably fair judicial system, you need a wide range of people willing to be jurors. Leaving them in fear of the consequences suggests you'll struggle even more to find such people.

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          • identicon
            Anonymous Coward, 11 Dec 2019 @ 7:47am

            Re: Re:

            Are you saying that US courts treat the list of jurors as a secret?

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          • icon
            Cdaragorn (profile), 11 Dec 2019 @ 8:02am

            Re: Re:

            Nah, we solved that problem a long time ago. We just throw anyone that refuses in jail. Easy peasy.

            In all reasonable seriousness, though, this argument doesn't make any sense in regards to whether or not someone should be able to record public court proceedings. If anyone actually wanted to go after the jury they can just come in and see you themselves. Preventing recording isn't accomplishing what you claim it is. The First Amendment concerns here are still very much more important than the perceived harm.

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        • identicon
          Anonymous Coward, 11 Dec 2019 @ 6:51am

          Re:

          If a witness suddenly turns up dead because their identity was leaked to the general public

          Anybody who has any desire to kill the witness already knows who the witness is.

          Twelve people chosen from the general public.

          ... by a process which may or may not be corrupt.

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        • identicon
          R/O/G/S, 13 Dec 2019 @ 10:05pm

          Re:

          Joe,"the Boston Barbarian” Barboza was the FBIs first golden witness. In fact, they started the WPP just to protect him.

          And, that allowed him to murder a few more people, and allowed the Boston FBI on Whitey Bulgers shift to murder hundreds afrer that.

          I sure like your idealism about protecting witnesses, even though its batshit crazy.

          http://gangstersinc.ning.com/profiles/blogs/joe-barboza-boston-barbarian

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      • icon
        btr1701 (profile), 11 Dec 2019 @ 3:55pm

        Re: Re:

        Fuck that. The public needs to know where evidence is coming from.

        Well, that'll be the end of rape prosecutions if rape victims know that their detailed testimony about how they were intimately violated will be Facebook and Twitter fodder before they ever leave the courtroom.

        Same with any sexual abuse of minor prosecutions. What parent will put their kid on the stand if the kid is going to become an internet celebrity as a result?

        All so some Anonymous Coward on the internet can fist-pump the air and say "Fuck that! I'm a warrior for the rights of the public!"

        Hiding it destroys the credibility of the proceeding.

        A prohibition of recording from the gallery hardly means the evidence is being hidden. A full record is being made by the court and the public can still sit in the gallery and watch the trial themselves if they're interested in doing so.

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        • identicon
          Anonymous Coward, 11 Dec 2019 @ 10:44pm

          Re: Re: Re:

          Dear lord br1701, are you gonna ask us to think of the children next? As others have already pointed out, court rooms are open to the public. People make those court room sketches all the time. Their is no honest reasonable reason to prevent citizens from recording the proceedings other than to control and manipulate the narrative.

          Because that happens. It happened to me. In my custody case involving international parental kidnapping. It was the second trial. I requested the minutes of the first trial to prove perjury. 40 vital minutes just vanished. If I has my own recording device it would not of vanished . More recordings mean more transparency and less corruption in the court room.

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          • icon
            Wendy Cockcroft (profile), 12 Dec 2019 @ 5:27am

            Re: Re: Re: Re:

            I'm sorry for your troubles, AC, but btr1701 is correct. Those rules are there for a reason.

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          • identicon
            R/O/G/S, 12 Dec 2019 @ 4:06pm

            Re: Re: Re: Re:

            I agree with you. Judges manipulate the record all the time.

            And, family courts are notoriously political, and the records in any contested proceeding will undoubtedly be slanted, seldom resembling what actually goes on in the proceeding.

            Rules are not laws, and should be challenged when possible.

            And to those who say that rules are there for a reason-those fundamentally do not respect Constitutional rights, but rather, they favor privileged narratives of culture-the same Monarchist replication of culture that caused our American revoution.

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          identicon
          R/O/G/S, 11 Dec 2019 @ 10:59pm

          Re: Re: Re:

          re: that'll be the end of rape prosecutions

          Your argument has led to what some call the “two tiered justice system” of kangaroo courts run by ALJs, instead of juries (Most notably John Whitehead, in concurrence with Stephen Baskerville) and as long as you and others advocate for anonymity of accusers, you yourself are part of the problem.

          And that problem is the lack of gender equality in America because the paternalistic attitude that women cant handle their own thoughts, feelings, choices and emotions IS the problem.

          Anonymity also enables false accusations, and worse.

          Many is the man or boy who doesnt report a physical assault or sexual harrassment because boys lives are not taken seriously, or, they are shamed for speaking out.

          “Man up” is the common refrain.

          So, do you believe that girls and women are emotionally sub-par, or that they cannot handle the emotional weight of their own lives-and their own accusations? That women are ##TooFragile?

          As long as people like you advocate anonymity of female accusers,true equality will never happen.

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          • icon
            Wendy Cockcroft (profile), 12 Dec 2019 @ 5:29am

            Re: Re: Re: Re:

            Oh, stop it, R/O/G/S, give us a break from the incel nonsense.

            Be careful what you wish for; if some personally embarrassing details of your life was hauled out in court and dissected on social media, how would you feel? That no-recording rule applies to cases where men are involved, too.

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            • identicon
              R/O/G/S, 12 Dec 2019 @ 3:41pm

              Re: Re: Re: Re: Re:

              Why do you lead with ad hominem?

              OK, then, lets test out equality: Easy on the incel insults, Ms. Toofattofuck.

              Do insults have an equality baseline?

              The same insult you laid there can get a man killed in meatspace:

              https://kiwifarms.net/threads/william-edward-atchison-fuckyou.37309/

              But with that out of the way, my sex life is FUCKING INCREDIBLE, far away from your British prudery.

              That said, I am for equality as stated, and you are not, and you specifically are seeking a privileged position.

              Men go through the court system every day. The courts themselves were and are designed to criminalize and penalize primarily men, and mens names and reputations get made into muck all the time.

              Men are also framed, harmed, beaten, raped, and worse in the criminal justice system thousands of times EVERY DAY.

              So, as I stated, equality wont happen UNTIL women themselves are responsible for their own accusations, and the consequences of those accusations.

              Why does that SCARE you so badly?

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              • identicon
                Anonymous Coward, 12 Dec 2019 @ 5:43pm

                Re: Re: Re: Re: Re: Re:

                Your MRA bullshit is bullshit. There are valid arguments to be made about family courts, but none of them are yours.

                Everyone is responsible for false accusations.

                If you are so worried about accusations getting people killed, then maybe rando people recording current court proceedings and publicly posting them isn't such a good idea, fuckwit?

                Once again, stop using the the shortened argumentum ad hominem phrase incorrectly. That in itself is a fallacious argument, while complaining that someone calling you a name is a form of tone trolling. This barely begins to address your full pantload of logical fallacies,false facts, and unsupported claims and assumptions.

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                • identicon
                  R/O/G/S, 13 Dec 2019 @ 4:22am

                  Re: Re: Re: Re: Re: Re: Re:

                  Your sociopathic tendencies are easy to spot, but your misanthropy far more apparent; but you know shitall about the problems of family/ other ALJ run courts.

                  Lets start with this turd here, from your assmouth:

                  Everyone is responsible for false accusations

                  While your collectivist idealism is admirable, sort of like a hippie hugfest at a Rainbow gathering chastising some guy who pukes in the love tent, its not even possible in the real world for many reasons beyond merely your glaring, and privileged biases.

                  I for one am not responsible for some nutjobs false allegations, because as I demonstrate here, I am active against them, and in fact seek to create equal and accountable space for women to be accountable for their own emotions and actions.

                  Unlike you, I dont gender the narrative of rape/violence/crime, etc.

                  As to mens rights, which really rankles your types, whoever you are, well, let me break the good news: human rights are human rights no matter how hard people like you troll to gender and privilege them to fit te script of Abrahamic religion based forever confict.

                  Now, turning to your sociopathy expressed via misanthropic control issues, we see you here above using a presumptive, authoritarian tone, actually trying to force me to write things to appease your own cinventions, EXACTLY as Judge Coward did in the case above.

                  To whit, fuckwit, you said:

                  stop using the the shortened argumentum ad hominem phrase incorrectly

                  Does freedom of speech, including non-tradituonal arguments of convention so appall you that you must seek to control the speech.of another, and if so, why is that?

                  Whats wrong with YOU?

                  People like you celebrated authors like bell hooks for abusing capitalization, but then seek to impose your own literary conventions on me?

                  Classic time waster. Fortunately for me, I have a few minutes to toss in your ever-empty tinners cup.

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          • icon
            btr1701 (profile), 12 Dec 2019 @ 1:56pm

            Re: Re: Re: Re:

            I don't know what the hell you're going on about, but no one here is arguing for anonymity for anyone.

            Telling a spectator they can't record from the gallery doesn't make anyone in the courtroom anonymous.

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            • identicon
              R/O/G/S, 12 Dec 2019 @ 3:58pm

              Re: Re: Re: Re: Re:

              I didnt even speak to that.

              But I will: the signs clearly state that recording is forbidden, and I believe that there are also laws that forbid it too.

              So while I respect and appreciate the guys activism, hes barking up the wrong tree if he wants to change that policy/law.

              But I DONT respect his choice to not protect his first amd. claim, because unlike any commenter here on this forum, I have actually been penalized in the real world, on multiple occasions for protecting that right.

              Its easy to be a keyboard warrior and yak about rights from #safespaces, but a bit different in meatspace, where those of us who have been on the frontlines of free speech actually suffer damages.

              That guy chose the wrong frontline, and paid the price, like so many others who try to challenge our corrupt judicial powers.

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              • identicon
                Anonymous Coward, 12 Dec 2019 @ 5:45pm

                Re: Re: Re: Re: Re: Re:

                No, he outright lied about what he was doing. That isn't a challenge. He's an asshole, and so are the judges who imposed the extralegal bullshit and confirmed it. He should suffer normal consequences for repeated contempt.

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                • identicon
                  R/O/G/S, 13 Dec 2019 @ 4:35am

                  Re: Re: Re: Re: Re: Re: Re:

                  While I appreciate the mans activism, and completely understand the need to lie to people in authority who abuse their power by default, I dont disaree that the guy was “wrong” in the binary sense.

                  The mythical prophet Jesus was wrong.
                  The Marqis de Sade was also wrong.
                  Daniel Shays was wrong.
                  Robbespiere was wrong.
                  Thoreau was wrong.
                  Martin L. King was wrong.
                  Gandhi was wrong.
                  Mandela was wrong.

                  And then, we find a strange, curious thirty to sixty year gap in the west where there are, nor can there be more perfectly wrong people like that.

                  Edward Snowden (also wrong) is in Russia, while we “the free” bicker under the watchful FVEYs of power.

                  And, as TD fanboz and girls like to say, Trump is so wrong too.

                  We are all so far right, apparently-put the missing comma anywhere it fits.

                  reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 11 Dec 2019 @ 5:36am

    So when judge 1 did it there were gonna be what 4 0's on the settlement...
    Now that the appeals court piled on how many more 0's does that add to the eventual settlement?

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    • identicon
      Anonymous Coward, 11 Dec 2019 @ 6:57am

      Re:

      Exactly. This violation of rights is clear and blatant. The juristiction should be trying to settle with the guy right now by vacating this travesty of justice and removing the Coward from the bench.

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    • identicon
      Anonymous Coward, 11 Dec 2019 @ 5:12pm

      Re:

      ... has anyone in the history of the US successfully sued an appeals court for money? Ever?

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  • icon
    joelbradshaw (profile), 11 Dec 2019 @ 6:11am

    Agree and disagree

    Telling the guy to write an essay because he violated the order not to film in court is fine, and I'd argue appropriate punishment. Policing comments, no. not so much. In no way is it a 1st amendment violation

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    • identicon
      Anonymous Coward, 11 Dec 2019 @ 7:07am

      Re: Agree and disagree

      You ever heard of compelled speech?

      reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 11 Dec 2019 @ 7:30am

        Re: Re: Compelled speech...

        If you are found guilty of a crime, the punishment can include lots of suspensions of constitutional rights. The right to bear arms, the right to move freely...why is speech different?

        As far as the moderation requirements, best compliance option is to disable all comments on the required essay posts. Though I don't see how it would be possible to do that on, say, Twitter.

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        • icon
          Stephen T. Stone (profile), 11 Dec 2019 @ 8:43am

          why is speech different?

          Because the First Amendment says so. Because all people should have the right to speak without the government controlling what they say. And because the suspension of certain constitutional rights for convicted criminals should not excuse the suspension of all such rights for such people.

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          • identicon
            Anonymous Coward, 11 Dec 2019 @ 8:53am

            Re:

            Beyond that, the judge has ordered the censorship of criticism, the one thing the 1st Amendment bars the government from doing. This judge has vastly overstepped his bounds.

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            • identicon
              R/O/G/S, 11 Dec 2019 @ 11:13pm

              Re: Re:

              ....the defendant didnt raise a claim to ENSURE and protect his own rights

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              • icon
                Wendy Cockcroft (profile), 12 Dec 2019 @ 5:31am

                Re: Re: Re:

                ....the defendant didnt raise a claim to ENSURE and protect his own rights

                Nonetheless, his own and those of his commenters were violated. I agree that the punishment should fit the crime and after seeing all the arguments so far I think a fine for breaking the rules would have been less problematic.

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                • identicon
                  R/O/G/S, 12 Dec 2019 @ 4:20pm

                  Re: Re: Re: Re:

                  Madame, with all due respect:

                  You have obviously never been involved in frontline activism of any kind.

                  Pecking at your keyboard is a nice start, but get your heels on the ground and things are a bit different-especially for men who challenge our horrific legal system.

                  And fines themselves can often be more drastic than imprisonment, as John Whitehead, and even right wing scholars like Stephen Baskerville have also documented it.

                  https://www.rutherford.org/publications_resources/john_whiteheads_commentary/government_of_the_r ich_by_the_rich_and_for_the_rich_its_time_for_milit

                  That whole mindset of “punishment-fit-the-crime” as a routine response is so anoyingly British, stemming from the days of floggings, hangings, and buggery under indenture and manumission, that it has no place in the discussion.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 12 Dec 2019 @ 5:50pm

                    Re: Re: Re: Re: Re:

                    Yeah, anyone who disagrees with your bullshit obviously hasn't been actually involved in trying to change anything for the better. Great claim coming from an obsessed keyboard warrior.

                    reply to this | link to this | view in chronology ]

                    • icon
                      Wendy Cockcroft (profile), 13 Dec 2019 @ 3:14am

                      Re: Re: Re: Re: Re: Re:

                      I actually have pounded the pavement for change. During the ACTA pushback I made my own leaflets and joined forces with local activists to distribute them and actually talk to people to get them to contact their MPs to vote against it. Later on, I was involved in setting up stands, etc. for various causes. I've also leafleted for my local political party.

                      I often hassle my MP politely but firmly over laws and policies I don't like.

                      Campaigning isn't only done on the keyboard, it goes into meatspace a lot of the time because meatspace is where things happen.

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                    • identicon
                      R/O/G/S, 13 Dec 2019 @ 3:55am

                      Re: Re: Re: Re: Re: Re:

                      Which one are you, Tit or Tat? Said by no pot or kettle anywhere ever.

                      But I am in the records and dossiers of quite a few anti-free speech organizations, my darling little troll.

                      My favorite claim to fame is that time-just that one where my likeness was cut and pasted into a peace march in a city I had never been too, shortly after being tailed by a photographer in sensible flats who just had to get my picture at ANOTHER peace march.

                      Whats that you say? Oh, never mind, its the gurgle of your shit for brains leaking out your prolapsed intestine.

                      You forever war types dont want peace, you want supremacy.

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          • icon
            btr1701 (profile), 11 Dec 2019 @ 4:02pm

            Re:

            Because the First Amendment says so.

            And the 2nd Amendment says I have a right to own a gun, yet if I'm convicted of a crime, I lose some or all of that right.

            The 4th Amendment says I'm free from warrantless searches, but if I'm on probation, that right mostly goes out the window.

            Again, the question remains, why is the 1st Amendment immune from impingement by probation requirements when none of the others are.

            And saying "Because the 1st Amendment says so" doesn't answer that question.

            And because the suspension of certain constitutional rights for convicted criminals should not excuse the suspension of all such rights for such people.

            (1) No one has suggested a probationer have all his rights suspended.

            (2) That still doesn't answer the question as to what legal principle allows some constitutional rights to be limited while on probation but requires the 1st Amendment to be held sacrosanct above the rest of the Bill of Rights.

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            • identicon
              Anonymous Coward, 12 Dec 2019 @ 5:56pm

              Re: Re:

              The Second and Fourth are clear conditions with respect to being required to serve a sentence with the kindness of not actually having to be incarcerated. (Whether or not that kindness is leniency or a practical consideration is irrelevant.) You have a bad argument. The fact that the First is abridged regularly in prisons is a problem.

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  • identicon
    AnonyCog, 11 Dec 2019 @ 6:14am

    Just Us!

    Must be a day of the week because the Constitution always gets shit upon by the legal profession.

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  • identicon
    Anonymous Coward, 11 Dec 2019 @ 6:47am

    Why not just issue the dude a fine and get on with things?

    If he can not adhere to the rules of the court then perhaps he should not be allowed in the audience.

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    • icon
      Anonymous Anonymous Coward (profile), 11 Dec 2019 @ 7:02am

      Re:

      "Why not just issue the dude a fine and get on with things?"

      Insufficient retribution for a vexed judge.

      What is the cure for impulsively vexed judges? Apparently appeasement by the state appeals court, though that does nothing for the rule of law or respect for the constitution (which does injury to respect for the courts themselves).

      A more serious question might be, why the hell didn't he bring up the First Amendment issue at the appeal? That there is a bit of some very fine lawyering. /s

      reply to this | link to this | view in chronology ]

  • identicon
    anon, 11 Dec 2019 @ 7:25am

    compelled speech?

    Compelled speech? If it was 'write an essay' or 'spend another 30 days in jail', why would one not write an essay?

    You might as well say that befing required to sign a credit/debit receipt for payment of a fine is compelled speech.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Dec 2019 @ 8:39am

      “You can spend a month in jail or you can say what we, the government, want you to say. Make your choice.”

      How does that not equal an attempt by the government to compel speech from someone?

      reply to this | link to this | view in chronology ]

    • icon
      rangda (profile), 11 Dec 2019 @ 9:25am

      Re: compelled speech?

      Ignoring the compelled speech issues (which I think are very real), I detest writing so much I'd seriously ponder the 30 day incarceration instead.

      Regarding the compelled speech issue: "You have been found guilty of slandering the President of the United States. You must write an essay on why President Trump is the greatest President in the history of the United States, post it on social media, and delete all negative comments. Or face X jail time". Does that make it clear?

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 11 Dec 2019 @ 4:06pm

      Re: compelled speech?

      It could just as easily be a political statement. Imagine a judge getting annoyed with, say, Colin Kaepernick getting a jaywalking ticket and ordering him to repudiate the kneeling thing and never kneel again during the anthem? What if George Takei got a traffic ticket and was ordered to henceforth be anti-gay rights?

      There is GREATER precedent and authority for a judge to order the above things than there is for a judge to order what this judge did.

      reply to this | link to this | view in chronology ]

      • icon
        Wendy Cockcroft (profile), 12 Dec 2019 @ 5:35am

        Re: Re: compelled speech?

        Eh, it wasn't political, he broke the rules. To tell him to write an essay (how childish!) about respecting the court isn't necessarily political, it's to hammer the message home to him so he doesn't do it again.

        To remove all negative comments from the social media accounts he posts it on is WAY more problematic. I can't defend that.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2019 @ 8:44am

    What happens if his essay explores how some courts exceed their authority?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 11 Dec 2019 @ 9:12am

      Re:

      "[D]raft a 2,000-3,000 word essay on the following subject: “Respect for the Court System is Essential to the Fair Administration of Justice,” forward the essay to Judge Coward for approval"

      I know reading is hard, and comprehending even harder, but this is rather explicit.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Dec 2019 @ 10:12am

        Re: Re:

        Not necessarily, as offhand I can see a pretty obvious loophole/opportunity, one I noted in my original comment. 'Respect for the court system is essential, which is why it's vital that the court system act in a manner that earns that respect from the public, first and foremost by respecting the constitutional rights of the public.'

        It would be risky as hell and practically be begging for a benchslap, but given the defendant's past actions I could certainly see him trying it.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Dec 2019 @ 12:00pm

        Re: Re:

        "I know reading is hard, and comprehending even harder, but this is rather explicit."

        Is it now ...

        I think that one could write their thesis on this topic and not in a flippant manner. One could point out how the fair administration of justice has never been a priority to many of the lawmakers in this country. In addition, one could point out how the courts need the consent of the governed, not the "respect" of the people. These two things are not the same. If one really tried they could write a friggin book.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2019 @ 9:12am

    There is actually a lot of compelled speech in the United States. Judges order apologies in juvenile court a lot. People are given sentence reductions for testifying (or testilying) against others. Congress can hold you in their personal lockup for clamming up if you are subpoenaed before a committee. (I don't know where the Congresses personal jail to hold non-cooperative people is.)

    You can also be held until you testify before a grand jury.

    They claim to be able to give you immunity from charges for testifying or signing complaints against others but they can't stop other jurisdictions from prosecuting you anyway.

    For a while it was popular to make offenders where signs that announced their crimes on a street corner for a certain number of hours. That seems to have fallen out of favor a couple decades ago but there was a lot of it at one time.

    There are more examples but this doesn't seem to be that uncommon.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2019 @ 12:07pm

      Re:

      That makes it ok?

      reply to this | link to this | view in chronology ]

      • icon
        Wendy Cockcroft (profile), 12 Dec 2019 @ 5:42am

        Re: Re: I must not disrespect the cou...

        Hmm. I'm loving this back-and-forth. Whether or not it's okay is not at issue in the cases of people wearing signs, etc., though we could have a great deal of fun debating it.

        Testifying to get a reduced sentence has been happening since forever, as has compelled testimony. However, I'd argue hard against the notion that this is compelled speech as such or the ACLU would have nailed it to the wall a long time ago. As I said earlier the only issue I have with the essay is that it seems incredibly paternalistic, as if the defendant was a naughty child. It's the suppression of negative comments by third parties, which is explicitly political speech (and therefore fully covered by the First Amendment) that I have the problem with. That is flat out censorship.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Dec 2019 @ 1:48pm

          Re: Re: Re: I must not disrespect the cou...

          "Whether or not it's okay is not at issue"

          This is true.
          Saying "that makes it ok then" is a sarcastic response.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2019 @ 9:30am

    So the solution is to delete his social media accounts and not get new ones until the period is over. The order doesn't restrict him from doing that.

    "Here's the elegant essay you compelled me to write."

    "Great, now post it to every social media account you control."

    "Absolutely."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Dec 2019 @ 3:18pm

    You can record anywhere in the courthouse that is open to the Public, legally. After all, it's a public building that the taxpayers paid for. YOU have that right!!! Don't let the dumb security tell you otherwise.

    On the other hand, the JUDGE does have control of his or her courtroom. That means if He/She doesn't allow recording, there's no recording, PERIOD!!! By the way, some do allow recording. Sometimes you can get permission from the judge to record. The Judge has no authority outside of his or her courtroom. Can't just say no recording inside the whole building. There are a lot of clueless security people though that will try to stop you and tell you crap that's just not true.

    In this case, the person doing the recording, warned and still did it should spend a few days in a cell and get a fine. He can go in the room and watch. But he can't just record inside the courtroom and start recording.

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 11 Dec 2019 @ 3:50pm

    Compelled Speech

    Compelled speech is fine, says the Appeals Court. Actually, it doesn't say exactly that because Eldridge never bothered to raise a First Amendment argument.

    This is the key portion of this entire article. First, Cushing says the court ruled that compelled speech is fine. Then when even he realizes that's too dishonest to fly, he backtracks a bit and says the court didn't exactly say that. But even that's not an honest recounting of the ruling because the court didn't say compelled speech is fine AT ALL. As Cushing notes, Eldridge never raised the issue of compelled speech and courts can't rule on issues that aren't pleaded by the parties before them. If the appellant doesn't raise a 1st Amendment issue, the court can't just go off the reservation and make a 1st Amendment ruling.

    So in reality, contrary to Cushing's initial claim, the court didn't come anywhere close to saying compelled speech is fine. In fact, the court didn't saying anything about compelled speech at all because it wasn't pleaded.

    even more questionably -- demands he police his post for any negative comments from third parties

    How does one even do that? I mean, if he's forced to post this to his Twitter account, for example, he can't delete the comments other people make to that post. You have no control over other people's comments to your tweets.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 12 Dec 2019 @ 5:50am

      Re: Compelled Speech

      Agreed, but you can block people. That would get the comments off until they were unblocked. That's the problematic part. If Eldridge doesn't block those people making negative comments, he's out of compliance for failing to remove the comments. That's the First Amendment violation as he would be actively censoring people under government compulsion. That's not even moderation, it's flat out censorship.

      Now some people will no doubt argue that the negative commenters' comments can be made on other platforms. Okay, fine. But the speech they're making, as long as it doesn't violate the platform rules or irk Eldridge because he doesn't want them there is being censored because the government is demanding the censorship.

      And that, dear friends, is the difference between censorship and moderation: is the government commanding it? If so, it's censorship. If the comments are suppressed per the desire of an individual acting on their own behalf, it's moderation.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 12 Dec 2019 @ 1:55pm

        Re: Re: Compelled Speech

        Agreed, but you can block people. That would get the comments off until they were unblocked.

        Maybe that's how it works on some platforms, but not on Twitter. When I block someone on Twitter, that only means they can't see or respond to my tweets anymore, but it doesn't remove any previous negative comments I've made to that post, nor does it prevent me from responding to someone else who is participating in the thread and posting new negative comments.

        reply to this | link to this | view in chronology ]

        • icon
          Wendy Cockcroft (profile), 13 Dec 2019 @ 3:16am

          Re: Re: Re: Compelled Speech

          Okay, that's true. I suppose our friend would be continually deleting and re-uploading his post, in that case, to remove the negative comments.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Dec 2019 @ 6:02pm

        Re: Re: Compelled Speech

        Now some people will no doubt argue that the negative commenters' comments can be made on other platforms.

        ...Even on articles about the case, and not directly attached to the guy's online accounts as comments on the potential essay or otherwise. Oops.

        reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 11 Dec 2019 @ 4:08pm

    US Code Title 18, Sections 241 & 242

    How, precisely, can a judge issue an order that the government is prohibited by statute from issuing, and not commit a felony by doing so?

    Remember, judges are not exempt from arrest, they only have absolute immunity to CIVIL lawsuits for their actions on the bench!

    https://www.justice.gov/crt/statutes-enforced-criminal-section

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Dec 2019 @ 4:53pm

      Re: US Code Title 18, Sections 241 & 242

      HONORABLE.. Judge COWARD?? I've seen some flaimbait on techdirt before, but I am afraaid of touching this!

      reply to this | link to this | view in chronology ]

  • identicon
    R/O/G/S, 11 Dec 2019 @ 11:10pm

    re: compelled speech

    Well, then he should have raised the first amd. issue, but he didnt. So, thats on him. He willingly or blindly did not protect that right.

    Plea deals, ALJ ajuducated matters, family courts etc. all depend on defendants/respondents to NOT raise constitutional claims, so much so that we now live in a due process free procedural police state guided by “high policing” rather than rule of law.

    That Coward, on the other hand likely knew that the defendant would not raise a difficult 1st amd. claim , and acted accordingly in the gray area between a defendants willingness ti protect his rights, and the courts willingness to make his life hell for awhile.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Dec 2019 @ 12:05am

      Re: re: compelled speech

      Why do judges think its their court? It is sure to hell America's Court where we as a people, and as a nation hold the ultimate check on our government. They are usurping that by attempting to rack up Americans with convictions without a jury of their peers, but by threat and coercion of extreme penalties. That is treasonous chicken shit in my book.

      reply to this | link to this | view in chronology ]

      • icon
        Wendy Cockcroft (profile), 12 Dec 2019 @ 5:51am

        Re: Re: re: compelled speech

        Well maybe we shouldn't let the Commander-in-Chief appoint unqualified judges. This kind of thing will become more common, people.

        reply to this | link to this | view in chronology ]

        • icon
          btr1701 (profile), 12 Dec 2019 @ 1:58pm

          Re: Re: Re: re: compelled speech

          Well maybe we shouldn't let the Commander-in-Chief appoint unqualified judges.

          Which judges are unqualified?

          reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 12 Dec 2019 @ 9:07pm

            Re: Re: Re: Re: re: compelled speech

            According to the ABA:
            Unanimously rated not qualified:
            Stephen Grasz
            John O'Connor
            Brett Talley
            Sarah Pitlyk*

            Substantially rated not qualified:
            Charles B. Goodwin
            Holly Lou Teeter
            Jonathan Kobes
            Justin Walker**
            Lawrence VanDyke***

            The White Houce removed the ABA's special access to background information of nominees in March 2017, a move seen as retaliatory.

            Several other of the confirmed candidates have zero experience in the role of judge.

            Another sign of a candidate's lack of quality is ties to the Heritage Foundation which, naturally, appears to be the primary criterion behind nomination. Aside from espousing corrupt policies, age (youth specifically) looks to be the second-most important factor for these "lifetime" positions, to maximize the amount of harm they can inflict.

            *“Ms. Pitlyk has never tried a case as lead or co-counsel, whether civil or criminal. She has never examined a witness,” reads her ABA review. “Though Ms. Pitlyk has argued one case in a court of appeals, she has not taken a deposition. She has not argued any motion in a state or federal trial court. She has never picked a jury. She has never participated at any stage of a criminal matter.”

            **“Mr. Walker’s experience to date has a very substantial gap, namely the absence of any significant trial experience,” the ABA said in its July review. “Mr. Walker has never tried a case as lead or co-counsel, whether civil or criminal. ... In addition, based on review of his biographical information and conversations with Mr. Walker, it was challenging to determine how much of his ten years since graduation from law school has been spent in the practice of law.”

            ***“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules,” reads the brutal ABA review of VanDyke. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind, and does not always have a commitment to being candid and truthful.”

            reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 12 Dec 2019 @ 9:09pm

              Re: Re: Re: Re: Re: re: compelled speech

              Number of "Not Qualified"-rated judges nominated for lifetime federal position by Obama: 0

              reply to this | link to this | view in chronology ]

            • icon
              btr1701 (profile), 13 Dec 2019 @ 1:26am

              Re: Re: Re: Re: Re: re: compelled speech

              According to the ABA:

              How about according to the Constitution, since that's what actually sets the qualifications for the Judicial Branch?

              reply to this | link to this | view in chronology ]

              • icon
                Stephen T. Stone (profile), 13 Dec 2019 @ 10:17am

                The Constitution sets the legal requirements. The ABA tries to provide some “quality standards” for people who meet those requirements. Or do you want any asshole to be handed a lifetime position on a federal court — where they will be deciding cases that can and likely will affect a lot of lives for years to come — only because they can (pardon the pun) clear the bar of being legally able to serve?

                reply to this | link to this | view in chronology ]

                • icon
                  btr1701 (profile), 13 Dec 2019 @ 1:50pm

                  Re:

                  The Constitution sets the legal requirements.

                  No, the Constitution sets the qualifications for each office-- president, senator, representative, judiciary. They're actually called Qualifications Clause(s). That's not my distinction, it's the Supreme Court's.

                  The ABA tries to provide some “quality standards” for people who meet those requirements.

                  That's the Senate's job, per the Constitution.

                  Or do you want any asshole to be handed a lifetime position on a federal court — where they will be deciding cases that can and likely will affect a lot of lives for years to come — only because they can (pardon the pun) clear the bar of being legally able to serve?

                  I don't see why anyone who meets the Constitution's requirements and is approved by the Senate shouldn't be able to serve.

                  We've had plenty of Supreme Court justices in the past who served well without even having been lawyers, let alone judges, and who had no ABA "vetting" because there was no ABA at the time.

                  reply to this | link to this | view in chronology ]

                • icon
                  Toom1275 (profile), 13 Dec 2019 @ 7:35pm

                  Re:

                  See how the weasel tries to move the goalpost from "These nominees are barely function as human beings, let alone judges - this is an unprecedented problem" to "well technically the Constitution lets any joe blow in, therefore the blatant corruption I align politically with is totally fine."

                  reply to this | link to this | view in chronology ]

            • icon
              Wendy Cockcroft (profile), 13 Dec 2019 @ 3:25am

              Re: Re: Re: Re: Re: re: compelled speech

              The American Bar Association sets the qualifications for judges: https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/webratingchart- trump116.pdf?logActivity=true

              The Constitution doesn't specify qualifications as such: https://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution

              But that doesn't mean any old Joe can be a judge. We expect them to know and understand the law in order to pass judgement upon people in accordance with the law.

              reply to this | link to this | view in chronology ]

              • icon
                Toom1275 (profile), 13 Dec 2019 @ 10:25am

                Re: Re: Re: Re: Re: Re: re: compelled speech

                Massacre Mitch's porpose in recruiting from the Federalist Society is to stack the courts with activist judges programmed to put "conservative" values (e.g.* attacking women, gays, minorities, abortion, immigrants, secularism, etc) above and ahead of obstacles like the law or the constitution.

                *
                "There was Brett Talley, a 36-year-old lawyer and former paranormal activity investigator who tweeted about Hillary Clinton being “rotten” and said his solution to the Sandy Hook shooting massacre “would be to stop being a society of pansies and man up.”

                "Matthew Petersen, also a 36-year-old lawyer, couldn’t answer basic questions about law in his confirmation hearing and was basically shamed into withdrawing."

                "Jeff Mateer, a 52-year-old lawyer who described transgender children as evidence of “Satan’s plan” and endorsed gay conversion therapy, was eventually withdrawn too."

                "The ABA, which has reviewed each of a president’s judicial nominees for decades, interviewed 60 people in its assessment of VanDyke ― including 43 lawyers and 16 judges. It found that VanDyke’s colleagues “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.”"

                "U.S. Circuit Judge Leonard Steven Grasz, who the ABA concluded was “unable to separate his role as an advocate from that of a judge,” given his strong anti-LGBTQ and anti-abortion views;"

                "U.S. District Judge Charles Goodwin, who the ABA said lacked the ability to fulfill the demands of a federal judgeship given his frequent absence from the courthouse in his former role as a magistrate judge;"

                "misleading statements by Pitlyk on reproductive health issues. She said Pitlyk claimed in a Supreme Court amicus, or friend-of-the-court, brief that in vitro fertilization leads to higher rates of birth defects.

                In that 2017 brief from a case that wasn’t heard by the justices, Pitlyk and her colleague also said surrogacy has “grave effects on society, such as diminished respect for motherhood and the unique mother-child bond.”"

                "Pitlyk is a Federalist Society member."

                "S. Circuit Judge Jonathan Kobes, who the ABA found “was unable to provide sufficient writing samples of the caliber required” of a circuit judge."

                reply to this | link to this | view in chronology ]

              • icon
                btr1701 (profile), 13 Dec 2019 @ 1:56pm

                Re: Re: Re: Re: Re: Re: re: compelled speech

                The American Bar Association sets the qualifications for judges:

                They make recommendations, not set qualifications. Their determinations are not legally binding-- as you yourself noted by the fact that Trump has nominated and seated judges who don't meet their criteria.

                But that doesn't mean any old Joe can be a judge.

                Umm... yeah, it does. Just as California was told it couldn't add new qualifications for the presidency when it tried to add a requirement that candidates must provide tax returns to be on the ballot, neither can the ABA add requirements for any federal judgeship.

                We've had "any old Joes" as judges and even Supreme Court justices in the past, before there was an ABA acting as gatekeeper. None of them were utter disasters, as far as I know.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 15 Dec 2019 @ 11:37am

                  Re: Re: Re: Re: Re: Re: Re: re: compelled speech

                  The ones that decided Dredd Scott were pretty bad. The only historical justification for it was they were trying to prevent a civil war and instead they created a civil war.

                  There are others but there are a few really bad ones.

                  reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Dec 2019 @ 6:59am

        Re: Re: re: compelled speech

        "Why do judges think its their court? "

        Because it is?

        Ever watch "court" shows on tv? Those are not real court rooms, obviously. afaik, they are arbitration.

        The court room, in the us, is not a place where one is allowed to stand up and begin shouting or any other disruptive antics. You are not allowed to blurt out counter points as your opponent testifies and not telling the truth can be a jail-able offense. What is it that you dislike about this?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Dec 2019 @ 6:17pm

        Re: Re: re: compelled speech

        Uh, they were granted these powers by law since this nation's founding, for reasons of maintaining order and quite literally keeping people safe. Abuses of courtroom command powers and discretions in sentencing should, of course, be challengeable and challenged.

        That's like asking how dare a ship's captain or a military officer exercise their command prerogatives. They have powers for a reason. Covering for them when power is abused or exceeded, or saying abuse isn't abuse, this is wherein the problem lies.

        Being pedantic, most courts are not "America's" court. Those would be federal courts, which are also weirdly divided into districts. Macon County courts and NC appeals courts are certainly not "America's".

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
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  • identicon
    Anonymous Coward, 12 Dec 2019 @ 2:41pm

    Just write TWO essays. Put the stupid court one behind a $50,000 paywall (not forbidden by the court) and the second one saying what a poopyhead just cowardly lion is......complete with stick man figures of him spanking a monkey etc....

    reply to this | link to this | view in chronology ]

    • identicon
      R/O/G/S, 13 Dec 2019 @ 4:46am

      Re:

      This is the only time I ever laughed without mocking derision at something an AC said.

      that poopy monkey....stickman....I hope the defendant is reading this.

      reply to this | link to this | view in chronology ]


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