It’s been months since Jeff Sessions was confirmed as Attorney General of the United States. However, the trip to that position was far from smooth for Mr. Sessions. Senators, attorneys, and many others all protested him receiving the top attorney position–based both on his positions on the law and his history when it comes to racial bias. With this in mind, it’s no surprise that some chose to protest his confirmation hearing. However, the criminal charges brought by Sessions’ office against some who did protest have caught at least some people off guard.
At Mr. Sessions’ confirmation hearing, Desiree Fairooz found herself in a surprising amount of trouble after she couldn’t contain her laughter as Senator Richard Shelby said that Mr. Sessions’ record of “treating all Americans equally under the law is clear and well documented.” This is perhaps not surprising as Jeff Sessions was rejected as a federal judge back in the 80s due to concerns about his opinions regarding minorities-including statements he made favorably referring to the KKK. In fact, Senator Shelby himself had previously run campaign advertisements slamming Sessions for describing the KKK as “good ole boys.”
The laugh, a raucous affair or barely more than a quick guffaw depending on who you ask (the laugh is barely audible on the CSPAN coverage) drew the attention of authorities to Ms. Fairooz. After laughing, police officers came to escort Fairooz from the building. Understandably perturbed about being forcefully escorted from the building after just laughing once, Ms. Fairooz struggled against the officers and yelled out “Why am I being taken out of here? I was going to be quiet and now you’re going to have me arrested? For what?” She went on to yell that the situation was ridiculous and that Jeff Sessions’ voting record was “evil.”
She, along with two compatriots, were charged with crimes for their actions, and prosecuted by Jeff Sessions’ office. Now, as of last week, all three have been found guilty and face fines of up to $2,000 and up to a year in prison. So what were these protesters charged with and how did a jury come back with a guilty verdict? let’s take a look at the charges and the law and figure out exactly what happened here.
There were basically two criminal charges brought against Ms. Fairooz: 1) a charge of disorderly and disruptive conduct and; 2) a charge of demonstrating within a Capitol Building. Like all criminal law, the exact meaning of these charges depends on the statute that is applied. Federal law, state law, and local laws all can have different approaches to the same basic crime which is described in their separate statutes. Here, the laws of Washington D.C. applied.
Under D.C. law, it’s a crime to “utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress.” It is also illegal to “parade, demonstrate, or picket within any of the Capitol Buildings.”
So was the laughter alone or the behavior as Ms. Fairooz was removed from the proceedings sufficient or intended to disrupt the conduct of a session of Congress? Ms. Fairooz described her laughter as an involuntary reaction to something she found inherently absurd. While the attorney from Sessions’ Department of Justice (DoJ) argued that the laugh itself was intentionally disruptive to the proceedings–describing the laugh as pointedly designed to draw attention. However, in anonymous statements to the press the jury revealed that they did not agree. This makes sense, a laugh in response to something you find ridiculous does not carry the necessary mental state to be convicted of this crime. There is no intent to disrupt in an involuntary action such as a laugh.
Unfortunately for Ms. Fairooz, it was not the laugh but her yells as she was removed from the confirmation hearing that led the jury to their decision to find her guilty. While jury members stated that they didn’t necessarily believe Ms. Fairooz acted in the wrong, they felt that the way the statute was worded they could not consider her actions to not leave her guilty. Her yells certainly disrupted the hearing and were intended to do so, despite the fact that she was essentially decrying the fact that she was being removed for something that the jury considered to not be disruptive enough to be a crime.
In defense to this, Ms. Fairooz’s attorney had argued (obviously unsuccessfully) that the yells created a spectacle but did not, in fact, disrupt the proceedings. This is an interesting point. In the video, the confirmation hearings do not appear to stop as Ms. Fairooz is removed from the building. This could imply that the proceedings were not actually disrupted. However, while such a determination would vary based on state case law, a disruption is unlikely to require actually halting a proceeding and instead would likely only require a scene drawing attention away from the proceedings.
As to the second charge, Ms. Fairooz held up her protest signs as she was removed from the building. This likely enough to qualify as demonstrating in a session of Congress. However, her two compatriots got off the hook on this charge due to how it is worded. Ms. Fairooz’s fellow protesters put away their signs once the hearing began. Thus, they did not demonstrate during the hearing and the jury did not find them guilty on this charge.
Free Speech v. Disorderly Conduct
One of the first things that likely comes to mind in a situation such as this is “why doesn’t the First Amendment protect this sort of protest?” The reality is that there is in fact a push and pull between statutes regulating public conduct such as this and the freedom of speech. Often, freedom of speech can be a defense when the situation is right. However, freedom of speech is not an absolute right as many believe and the government does have the power to curtail speech in certain situations.
For instance, where a statute reasonably limits the time, place, or manner of speech in a way that is narrowly drawn to achieve a goal and targets no specific viewpoint that is usually allowed. Some examples would be noise ordinances and, most appropriately, the two statutes we’ve discussed from this case. They target where and how one can speak, but not the content of speech. Thus, it is unlikely that Ms. Fairooz has a First Amendment defense here.
Far From Over
While many have highlighted the potential for up to a year in prison from these charges, it is extremely unlikely that will be the verdict handed down when Ms. Fairooz is sentenced on June 21st. With this sort of situation, a fine accompanied by no jail time seems more likely.
Even if jail time is part of the sentence, Ms. Fairooz still has the option to appeal the ruling. Her attorneys have already filed motions which may overturn the ruling. Regardless of the ultimate outcome of this case, the choice to prosecute it by Jeff Sessions shows a serious lack of priorities. With so much work in from of the DoJ, spending resources targeting those who protest Sessions’ position seems like a matter of ego overcoming sense.