ENCINO, Calif.—We know of only one attorney who has the First Amendment tattooed around his upper arm: Allan B. Gelbard, Esq. So it's only fitting that he, in conjunction with the First Amendment Lawyers Association (FALA), is planning to teach members of the protest movement Occupy LA a short course in the First Amendment, hopefully to keep them out of city jail.
As most LA residents probably know by now, the City of Los Angeles has had a sort of indifference/hate relationship with the local branch of the Occupy movement, with the city alternately affirming that it will take no action against Occupy encampments, and then later busting them anyway.
So far, according to an article in today's Los Angeles Times, more than 350 Occupy protesters have been arrested since their encampment began back in October, and in a new move, the City Attorney's office has agreed not to push for fines and/or jail sentences for the defendants if they'll be willing to pay $355 to a private corporation, American Justice Associates, to take a course in "free speech" consisting of lectures given by attorneys and retired judges—just the sort of people who can be counted on to give an unbiased view of citizens' First Amendment rights to, for instance, assemble peaceably and petition the government for redress of grievances.
Only those with no previous criminal record and who were arrested for "low-level misdemeanor offenses, such as failure to disperse," are eligible to have their charges dropped in exchange for attending the course... but Gelbard sees a gaping hole or two in the City Attorney's plan.
"While I applaud the City Attorney’s office for now offering many purported offenders an opportunity to participate in a diversion program involving a First Amendment education, and thereby to avoid criminal prosecution, it appears that there are several obvious problems in the manner in which this program is to be conducted," Gelbard wrote in a letter to LA City Attorney Carmen Trutanich.
"Initially, I am concerned that many of the Occupy protestors may not have the funds necessary to attend such a class," Gelbard stated. "As part of Occupy’s core mission is to raise awareness of the income diversity between the classes, it would seem cruelly ironic to prevent members from participating in a First Amendment education—and contemporaneously avoiding a criminal prosecution—should they simply be financially incapable of paying for the class.
"Second, and more importantly from a First Amendment prospective, requiring these individuals to pay money to a corporate provider appears to force them to sacrifice adherence to a core political belief—refusing to contribute to funding of the increasingly improper power of corporate interests—in exchange for government favor (dismissal of their criminal cases), a choice that is, in and of itself, prohibited by the First Amendment," Gelbard advised, citing several U.S. Supreme Court decisions affirming that government may not condition citizens' First Amendment rights on their being forced to pay for some government or corporate service—like $355 for so-called "First Amendment lessons."
But Gelbard thinks he has a solution.
"My office, working in conjunction with the First Amendment Lawyer’s Association, will provide the First Amendment class to all who wish to attend—at no cost to the defendants or the city," Gelbard offered. "We will provide all appropriate record-keeping to verify individual attendance, all written materials, the participation of myself and several other nationally respected First Amendment practitioners, the curriculum, and all necessary administrative and logistical services, at no charge to either the City or the Occupy defendants.
"We intend to hold this class in a public location," he added, "so that all others who wish to audit the class (subject of course to space restrictions) and learn about the protections of the First Amendment—including the Mayor, city counsel members and police officers—will be free to do so."
And if there's one thing Gelbard and other members of FALA know, it's First Amendment law!
So when Chief Deputy City Attorney William Carter is quoted by the LA Times as saying, "The 1st Amendment is not absolute," noting that "the U.S. Supreme Court has ruled government can regulate when, where and how free speech can be exercised," he's talking about City of Renton v. Playtime Theatres—a case with which FALA members are intimately familiar. And considering how often government attorneys at all levels seem to have forgotten what they learned in their Constitutional Law 101 classes, perhaps courses in what the First Amendment really means would be better taught by those whose salaries aren't paid with green checks.
"I look forward to discussing this proposal with you at your earliest convenience," Gelbard concludes—and we can all hope that Mr. Trutanich, who's shown such common sense in filing a lawsuit against AIDS Healthcare Foundation's "condoms in porn" power grab, will consider Gelbard's proposal with an open mind.
Pictured, l-r: Allan Gelbard with fellow First Amendment attorneys Paul Cambria and H. Louis Sirkin.
