- The Washington Times - Monday, July 24, 2017

Five activists decided the best way to protest a major First Amendment Supreme Court case was with more First Amendment activity, so they disrupted the justices’ oral arguments two years ago.

The justice system struck back Monday when a federal judge in Washington sentenced the activists to jail time. Four of them will serve a weekend behind bars, and the fifth, who has had a subsequent run-in with the law, will have to serve two weekends.

The sentences are lighter than the 10 days the government wanted but stricter than what the activists requested: no more jail time.

Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia said it was the third time in a year that activists affiliated with liberal protest organization 99Rise had disrupted the justices.

Attorneys for the activists urged Judge Cooper not to hand down punishment, arguing that there is “a thin line” between the First Amendment and criminal behavior.

“They crossed it pretty well,” Judge Cooper responded.

The activists, two women and three men who dubbed themselves the “Supreme Court 5,” said they felt their protest was the only way to alert the country to the threats posed by the Supreme Court’s 2014 decision in McCutcheon v. FEC, which invalidated rules limiting the number of candidates to whom a single campaign donor can contribute in an election cycle.

“It is precisely their respect for the rule of law that brought them where they are today,” said Jeffrey L. Light, an attorney for three of the activists.

The hearing began more than 15 minutes late because two of Mr. Light’s clients didn’t show up on time. Mr. Light said the clients had been in the courthouse cafeteria with him but somehow didn’t make it into the courtroom on time, forcing the judge to wait.

Judge Cooper did not appear to penalize them for tardiness. He issued the same sentences as two others who were in the courtroom on time.

“I realize this was not the crime of the century,” the judge said, though he added that the protest — at the beginning of a morning session just before lawyers were being admitted to the bar and before the justices heard oral argument in a bankruptcy case — did unsettle the high court.

Each of the five stood and demanded “free, fair elections” and pleaded for “one person, one vote.”

Four of the five activists addressed the judge before sentencing. They said they believed they had no choice but to disrupt the Supreme Court because they felt stifled by the rules. They said protesting in a place where protests are illegal was a way to draw attention to their cause.

“My song in the Supreme Court was an attempt to pierce through the fog of big money,” David Bronstein said.

Matthew Kresling, another of the activists, told Judge Cooper that they knew they would face stiff penalties even before their demonstration.

“But I say this: Protest is not a disruption of a fair and functional system, but rather a symptom of a system which is unfair and dysfunctional,” he said. “If protest is an annoyance, it’s an annoyance in the same sense that a fire alarm is.”

He said the activists felt trapped by laws that restrict protests to certain times and locations, giving those in power the ability to marginalize and ignore demands. That was particularly true for the Supreme Court, Mr. Kresling said.

“If the court is like a church, the justices can too often seem cloistered,” he said. “We tapped on the wall of the cloister to warn them about a crisis of faith occurring outside, that, if ignored, is only preface to more urgent banging or even a breach.”

Judge Cooper said he applauded the activists’ devotion to participating in civic life but said courts are a special forum whose decorum needs to be respected.

“We are not here because of your viewpoints,” he said before sentencing. “We are here for one reason and one reason only, and that is where, when and how you chose to exercise those viewpoints.”

The activists pleaded guilty earlier this year to charges of illegal picketing and making haranguing speeches on Supreme Court grounds. They could have faced more than a year in jail.

The government sought a much lower penalty but demanded that the protesters face at least some jail time.

“If there is not a meaningful deprivation of liberty, then these defendants will not absorb the message,” said Lisa N. Walters, the government’s attorney.

Judge Cooper agreed, saying those involved in two previous protests had been given probation, and that wasn’t enough of a deterrent.

The judge singled out Mr. Kresling for a double penalty because he was arrested earlier this year as part of a protest in the Pennsylvania State House. The activist said he was part of a group demanding to meet with a legislator, and when the lawmaker refused, the protesters refused to leave his office.

Several of the activists said the criminal justice process, including having been on supervised release for the past two years, regularly checking in with the court and having served 30 hours in jail when they were first arrested, was punishment enough.

“I feel that my debt to society has already been paid,” said Richard Saffle, one of the two who showed up late for the sentencing.

He and Mr. Bronstein were given one weekend in jail, as were Yasmina Mrabet and Belinda Rodriguez.

“If there is not a meaningful deprivation of liberty, then these defendants will not absorb the message,” said Lisa N. Walters, the government’s attorney.

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