Client charged with a crime (or contempt) for acts of speech or expression?
by: Kkreuscher • April 21, 2011 • no comments
Sometimes our clients get charged with a crime or contempt essentially for engaging in speech or expression. Sometimes they get charged for some other presumptively constitutional activity.
Here are some examples:
- clients charged with stalking or violating a stalking protective order for communicating with the protected person.
- client charged with contempt of court for violating a FAPA restraining order or for violating a no-contact order.
- clients charged with contempt for violating an elder-abuse order for engaging in (at least arguably) lawful protest activities.
In such cases, I've had some success with arguing that a person simply cannot be punished for engaging in constitutionally protected activity, citing State v. Maxwell, 165 Or App 467, 998 P2d 680 (2000) (holding, inter alia, that, despite the issuance of a valid court order, a defendant can only be criminally punished for violating the order for acts that are not constitutionally protected).
That is, when the charged conduct is arguably covered by the First Amendment and Article I, section 8 (e.g., communication, protesting, nude dancing (section 8)), the state must prove that the conduct was actually unprotected under the state and federal constitution. And if the state does not provide sufficient evidence that it was unprotected, a judgment of acquittal is appropriate.
Of course, if the motion for acquittal is lost because there was enough evidence to send the question to the jury, you should request a jury instruction of any additional constitutionally-required elements. Then, enjoy your new jury argument.
For example, in a case of mine currently in the Oregon Supreme Court, my client was charged with violating a stalking protective order for communicating with the protected person (i.e., the victim). At trial, the defense argued that the state had to prove that the communications were unprotected speech (e.g., true threats). The defense argued that a judgment of acquittal was appropriate, because the state had failed to proved evidence that defendant's communications met the extra-constitutionally required threat elements, see State v. Rangel or State v. Moyle. Upon losing the motion for acquittal, the defense also asked for a jury instruction of the threat elements. Trial was a loser, but we won in the Court of Appeals.
PLEASE NOTE: When making that argument, stress that you are not collaterally attacking the validity of the underlying restraining order or court order. No one should think that you are, because you're not.
A collateral attack of the order would make the entire order void. If the order was declared void, there would be no way that a defendant could violate the order, because the order was unlawful in toto. That is, the defendant would not be guilty of violating the order even if the defendant did engage in unprotected speech or expression by engaging in truly threatening behavior (Rangel), unlawful incitement (Brandenburg), or truly obscene communication (Ciancanelli), or et al. But your argument is not an attempt to have the order declared void in a collateral proceeding. To the contrary, your argument is that defendants simply cannot be criminally punished for engaging in constitutionally protected activity.
For a sample motion for a judgment of acquittal making this argument [click here].
Please note that the Oregon Supreme Court may take a hard look at the Court of Appeal's decision in Maxwell in State v. Ryan, S059065 (to be argued on June 8, 2011).
UPDATE: The Oregon Supreme Court reversed the Court of Appeals, holding that Article I, Section 8 does not provide a free speech defense when the speech is prohibited by a Stalking Protective Order. State v. Ryan, the -intersection-free-speech-and-stalking-order-violations-%E2%80%93-nothing-see-here-move-along case is also summarized here.
