Experts debate Williams' sentence
Councilman is appealing his graffiti case
Claire Taylor
City-Parish Councilman Chris Williams may not have a legal
standing for claims that his graffiti sentence violates his freedom of speech,
according to three professors specializing in First Amendment and free speech
issues. It depends on how you define threaten and intimidate, they said.
But two other First Amendment issues may provide grounds for a legal
challenge.
"Unconstitutional" and "a blatant
violation of his freedom of speech" is how Williams' attorney, Harold Register
Jr., described his client's sentence in a notice of intention to apply to the
Third Circuit Court of Appeal for an emergency writ of review last week.
Williams is appealing his entire sentence, which includes six months of
suspended jail time, a $1,500 fine, 60 hours of community service, an anger
management class and a prohibition against threatening or intimidating
councilmen and council staff.
"There's a difference between what the First Amendment protects, free speech,
and assaulting someone with words," said LSU law professor Paul Baier.
Free speech does not allow someone to attack, intimidate or threaten, he
said.
On Sept. 22, Williams pleaded no contest to three misdemeanor counts of
criminal damage to property for scribbling, carving and writing "Dr. Martin L.
King Jr. Drive!" in permanent ink on the council dais. Williams, who apologized
the day after writing on the dais, took full responsibility again in court for
his actions.
In setting his probation, Fifteenth Judicial District Judge Marilyn Castle
forbade Williams from threatening or intimidating fellow councilmen and council
staff.
A letter from Councilman Bruce Conque led, at least in part, to the
prohibition. In the letter to Castle, Conque wrote that Williams, during a Sept.
19 council meeting, said "I was to stay out of the affairs of his district and
the Northside and that 'your a__ is mine.'"
No other councilmen heard the threat, Conque said.
Castle referred to the letter prior to sentencing Williams, but the letter
was not entered into the record until Register filed a motion after the
sentencing.
Williams declined to comment on the allegations and said on Friday he had not
seen Conque's letter.
During a press conference Friday, Williams referred to attempts to "stymie
the aggressive nature" in which he represents his constituents on the council.
"Assertive is not the same as intimidating and threatening," Williams said.
Free speech is not an absolute right, Baier said.
You cannot threaten someone with remarks like 'I'm going to kill you,' and
you cannot yell 'fire' in a crowded theater, he said.
In Williams' favor is that "nobody knows what threaten or intimidate means,"
Baier said. "It's too vague."
The government is not supposed to stifle speech, but threats do not count as
speech, said practicing attorney Craig Freeman, an assistant professor at LSU's
Manship School of Mass Communication.
"It's never OK to threaten physical violence," Freeman said. "It's assault,
essentially. It's a tough argument. The judge could say you never have that
right and I'm just reminding him of that."
Eugene Volokh, a UCLA law professor specializing in the First Amendment, said
threats are not protected by the First Amendment, but intimidation can be read
more broadly.
"That might be a First Amendment violation, but you can't tell until you see
it applied," Volokh said. "If intimidation is code for saying profane things to
others that make them feel upset, it's probably unconstitutional."
In principle, it appears that Castle's prohibition is not a violation of
Williams' free speech rights, Volokh said.
"But if he's hauled into court for intimidating councilmen ... maybe he's got
a stronger case."
A bigger problem with the case may be Castle's consideration of Conque's
letter, Freeman said.
In 1990, the First Circuit Court of Appeal allowed consideration of a letter
about an alleged out-of-state child molestation in sentencing on another case.
But in Freeman's opinion, Castle should not have considered Conque's letter
because there was no due process associated with it, because Williams was not
allowed to respond to the allegations and because the allegations of
intimidation had no bearing on the graffiti charges.
"If a history of violence wasn't part of the proceeding, plea or indictment
associated with the action, I think it could be problematic," he said.
Volokh raised another potential problem with the case, also dealing with the
First Amendment: Was Williams prosecuted for what he wrote, for his opinion,
rather than the illegality of the act?
"There's no blatant violation of freedom of speech in saying you can't write
on government property, especially since a Sharpie is not easy to wipe off,"
Volokh said. "On the other hand, if he was singled out for what he was saying,
that's a First Amendment violation."
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