Newsday reports:
The line leading into First District Court in Hempstead Monday morning was long and frustrating, but it was the punch line in a lawyer joke that got two rabble-rousing comedians arrested.
“How do you tell when a lawyer is lying?” Harvey Kash, 69, of Bethpage, said to Carl Lanzisera, 65, of Huntington, as the queue wound into the court. “His lips are moving,” they said in unison, completing one of what may be thousands of standard lawyer jokes.
But while that rib and several others on barristers got some giggles from the crowd, the attorney standing in line about five people ahead wasn’t laughing.
“‘Shut up,’ the man shouted,” Lanzisera said. “‘I’m a lawyer.'”
The attorney reported Kash and Lanzisera to court personnel, who arrested the men and charged them with engaging in disorderly conduct, a misdemeanor. . . .
Dan Bagnuola, a spokesman for the Nassau courts, said the men were causing a stir and that their exercise of their First Amendment rights to free speech was impeding the rights of others at the court.
“They were being abusive and they were causing a disturbance,” Bagnuola said. “They were making general comments to the people on line, referring to them as ‘peasants,’ and they were causing a disturbance. And they were asked on several occasions to act in an orderly manner, not to interfere with the operation of the court.” . . .
Kash said he and Lanzisera were merely saying out loud that the public was being treated like peons or peasants while attorneys, who wave their security passes to court officers and don’t have to stand on line, are treated like kings. . . .
A courthouse is a “nonpublic forum,” which is to say a piece of property that’s owned by the government, and that hasn’t been opened as a place for people to speak to the public. The government may restrict speech in such fora, but only if the restriction is reasonable and viewpoint-neutral.
Thus, the government can certainly ban picketing or demonstrations inside a courthouse. It may even ban all profanity, or impose other viewpoint-neutral restrictions. (Those who want to respond by citing Cohen v. California might want to read this page.) But it can’t impose viewpoint-based restrictions, even on speech that offends people.
So if Kash and Lanzisera were just talking to each other at a normal tone of voice in line, and were punished because the stuff they were saying was critical of lawyers, the matter would be simple: The government action would be unconstitutionally viewpoint-based. If they were talking to the rest of the line — standing nearby and orating to strangers, especially in a loud voice — and there were a clear courthouse rule prohibiting such behavior, then their violation of this rule (even after having been told about it) would likely be constitutionally punishable as disorderly conduct. (It would interfere with the operation of the courthouse, because it’s a political demonstration in the courthouse and not because of the particular viewpoint the demonstration expresses.)
This case is somewhere in between, I suspect: It sounds like Kash and Lanzisera were indeed trying to speak to a broad group of strangers, but at the same time it sounds like there probably isn’t such a clear rule here.
If these factual assumptions are correct, then Kash and Lanzisera’s argument wouldn’t be open-and-shut. But I think it would still be pretty strong: Even if the government could restrict public orations in the courthouse, it couldn’t do it through a general “disorderly conduct” rule that vests officials with unbridled discretion that the officials could easily use in viewpoint-discriminatory ways. The prohibition on unbridled discretion to restrict speech is at its strongest in traditional public fora, such as sidewalks and parks. But I suspect it would apply even in nonpublic fora, such as courthouses. Cf. Board of Airport Com’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987).
In any case, I expect that if Kash and Lanzisera are indeed prosecuted, they’ll fight the case on First Amendment grounds, and we’ll learn more both about the factual details and the applicable legal rule.
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