ACLU Urges CA Court to Lift Order Barring Man from Protest on Behalf of Striking Workers

FOR IMMEDIATE RELEASE

SAN FRANCISCO — In a letter sent today to a Marin County judge, the ACLU of Northern California urged the court to void an order barring a man from engaging in peaceful protest.

The case arose after police arrested the man, Hallie Lake Cox, for allegedly throwing a rock at a bus transporting replacement workers during a local factory strike.

On Sept. 9, the judge in that case granted Cox’s motion for reduction of bail to $6,000, with the condition that Cox would not publicly participate in strike activities such as picketing, passing out leaflets or petitions on a public sidewalk, or attending union rallies.

Two weeks later, Cox was arrested and charged with willfully disobeying the order. According to the police report, Cox had violated the bail conditions by displaying on his red Toyota truck an American flag, a Mexican flag, a Teamsters 890 flag, and a flag bearing the Spanish words “Si Se Puede” (“Yes You Can”).

Based on that arrest, the District Attorney filed a criminal complaint against Cox for contempt of court on September 21.

“We believe that this order infringes on the fundamental constitutional rights of freedom of expression and association and the principles of due process,” said the ACLU of Northern California and the Monterey County Chapter of the ACLU of Northern California in a joint letter to Judge Marla O. Anderson of the Monterey County Coordinated Court.

“First, he did not violate the order: driving a truck decorated with flags is not encompassed within its proscription,” the ACLU said in the letter. “Second, the order infringes on First Amendment rights and cannot sustain a criminal contempt conviction. Third, it is too vague to sustain a contempt judgment.”

The case is People v. Hallie Lake Cox. The ACLU’s letter follows:

October 25, 1999

Honorable Marla O. Anderson
Monterey County Coordinated Court
King City Division
250 Franciscan Way
P.O. Box 647
King City, CA 93930-0647

Re: People v. Hallie Lake Cox
Monterey County Municipal Court No. MK 991562A
Monterey County Municipal Court No. MK 067280A

Dear Judge Anderson:

We are writing on behalf of the American Civil Liberties Union of Northern California as amicus curiae in support of the defendant, Hallie Lake Cox. We respectfully urge the Court to vacate the order issued on September 9, 1999, requiring Mr. Cox, as a condition of bail reduction, “not to be present and engaged in any public areas for strike purposes.” We believe that this order infringes fundamental constitutional rights of freedom of expression and association and principles of due process. We also urge the Court to dismiss the pending contempt charges against Mr. Cox for allegedly violating this court order.

The American Civil Liberties Union of Northern California is the regional affiliate of the American Civil Liberties Union, a nationwide, nonprofit, nonpartisan membership organization dedicated to the defense and promotion of the guarantees of individual liberty secured by the Bill of Rights and cognate statutes. We appreciate having this opportunity to address the significant constitutional issues raised by the condition of release barring public participation in strike activities.

Background.

This case arises out of a strike at Basic Vegetable Products in King City. Mr. Cox was arrested and charged with a violation of Vehicle Code Section 23110(b) for allegedly throwing a rock at a bus transporting replacement workers. Bail was originally set at $12,000. Judge Kingsley granted Mr. Cox’s motion for reduction of bail; she set bail at $6,000 and ordered Mr. Cox “not to be present and engaged in any public areas for strike purposes.”

On September 19, 1999, Mr. Cox was arrested and charged with willfully disobeying the order barring public participation in strike activities. According to the police report, the arrest was based on Mr. Cox’s driving on public roads, in his red Toyota truck, with several flags attached (an American flag, a Mexican flag, a Teamsters 890 flag, and a flag bearing the inscription “Si Se Puede”). The District Attorney filed a criminal complaint for contempt of court (Penal Code Section 166(A)(4)) on September 21.

The Constitutional Validity of the Order Prohibiting Strike Activities.

Conditions of bail reduction imposed pursuant to Penal Code Section 1296c must be consistent with constitutional standards. The order prohibiting public participation in strike activities prevents the exercise of fundamental rights of speech, assembly and association protected by the First Amendment and Article I, Section 2 of the California Constitution. It is, in addition, too imprecise to afford fair warning and thus violates due process as guaranteed by the Fourteenth Amendment and Article I, Section 7 of the California Constitution.

1. Freedom of Expression, Assembly and Association.

The order proscribes Mr. Cox from participating in a vast range of activities to inform the public of the workers’ position on the issues involved in the ongoing labor dispute at Basic Vegetable Products. Mr. Cox may not engage in peaceful picketing. He may not pass out leaflets or petitions on a public sidewalk. He may not attend a union rally. These are constitutionally protected activities at the core of the First Amendment’s protection for freedom of speech, assembly and association.

The “dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” Thornhill v. Alabama, 310 U.S. 88 (1940). The California Supreme Court has repeatedly struck down laws and reversed court orders limiting pickets, leaflets, or boycotts arising from labor disputes as violating basic freedoms. See, e.g., County Sanitation District No. 2 of Los Angeles County v. Los Angeles County Employees Association, 38 Cal. 3d 564, 587-589 (1985); United Farmworkers Organizing Committee, AFL-CIO v. Superior Court, 4 Cal. 3d 556, 566-571 (1971); In re Berry, 68 Cal. 2d 137, 151-156 (1968).

The court may not constitutionally order Mr. Cox to relinquish his fundamental rights of expression and association as a condition of release on reduced bail. In analogous cases, release conditions that broadly stifle First Amendment rights have been ruled unconstitutional.

A situation closely parallel to the present case was presented in United States v. Solem, 440 F. Supp. 544 (D. S. D. 1977). In Solem, a leader of the American Indian Movement was convicted in state court of “rioting to obstruct,” an offense arising out of an affair organized by the American Indian Movement, which resulted in a violent disturbance at a South Dakota courthouse. The trial judge admitted the petitioner to bail pending appeal, conditioned in part on an order that the petitioner “refrain from participating in any American Indian Movement activities,” with exceptions for a few specific activities such as fund-raising. The state subsequently petitioned for bail revocation, arguing that the petitioner’s participation in a meeting with government officials as an American Indian Movement leader violated his bail condition.

After the South Dakota Supreme Court denied petitioner’s application to strike the condition, petitioner sought a writ of habeas corpus in federal court. The district court, issuing the writ, ruled that the bail condition broadly restricting petitioner’s participation in American Indian Movement activities violated the First Amendment. The court wrote:

By the restriction imposed under condition 4, relator is prohibited, for example, from making speeches on behalf of the American Indian Movement. He is prohibited from most organizational activities, from participating in American Indian Movement marches or assemblies, from recruiting members for the organization, or from even writing literature or letters on behalf of the movement. What the court is attempting to do through bail condition 4 is to regulate not only conduct in certain conditions but more critically, to regulate the exercise of “pure speech” by the relator. The nation’s laws and our dedication to the Bill of Rights will simply not permit this.
440 F. Supp. at 550.

The court ruled that the order stifling rights of petition, speech, assembly and association was not narrowly tailored to promote compelling interests. “In matters of bail, the state interest is primarily two-fold: (1) assurance of the defendant’s future presence in court proceedings and (2) the protection of the public.” Id. at 551. Restricting basic expressive rights bore no relationship to future appearance. “As to the protection of society, an invasion of First Amendment rights can not be predicated on a speculative concern of danger.” Id. In the court’s view, the condition “serves only to stifle relator’s freedom of expression and association while giving judicial credence to the unfair and unjustified inference that violence is the shibboleth of the American Indian Movement.” Thus, the bail condition “represented an unconstitutional restraint on relator’s First Amendment liberties of speech and association,” and could not form the basis for punishment. Id. at 552.

Similarly, the Wisconsin Court of Appeals ruled that a bail condition restricting picketing outside of an abortion clinic violated the First Amendment. State v. Braun, 152 Wis. 2d 500, 449 N.W. 2d 851 (Ct. App. 1989). The defendant had been arrested and charged with criminal trespass arising out of a blockade of a women’s health facility that performed abortions. He was released on a $500 personal recognizance bond, and ordered to have “no contact” with the clinic. The bail condition was later defined to mean “no contact, no going inside the facility, no phone calls to the facility and not to be within 500 feet of that facility.” 449 N.W. 2d at 853. He was later arrested and convicted of “bail jumping” for picketing within 25 feet of the facility.

The Court of Appeals reversed his conviction on the ground that the bail order was unconstitutional. “We reject the view that a person charged with a crime, but not convicted, forfeits his or her First Amendment rights.” Id. at 857. Recognizing that picketing on a public sidewalk is a core constitutional right, the court concluded that no “special circumstances justifying the extraordinary interference with Braun’s right to free speech were shown in this case.” Id. at 858. Bail conditions limiting First Amendment rights may be sustained, the court ruled, only upon specific findings, based on evidence, that such restrictions are needed to preserve the integrity of the court process or safeguard the public, such as orders limiting communication to prevent witness intimidation.

The order barring Mr. Cox from public participation in strike activities restricts First Amendment liberties without any compelling justification. It should be vacated.

2. Due Process.

Court orders must be precise, especially where First Amendment rights are at stake. “A directive ‘in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'” In re Berry, 68 Cal. 2d at 156, quoting Connally v. General Construction, 269 U.S. 385, 391 (1926). The order barring Mr. Cox from being “present and engaged in public areas for strike purposes” lacks the requisite clarity.

The clearest illustration of the order’s imprecision is the police report underlying the current charge. It is understandable that Mr. Cox did not anticipate that he was violating the court order by simply driving his truck decorated with flags on a public street. Would a random sample of people agree that displaying flags on a truck constitutes being “present and engaged in strike activities?” Would they agree with the police officer’s view that Mr. Cox displayed willful contempt of court because “by having the flags on display, driving around town,” “someone might think [that Mr. Cox is] a striker?” The scope of the order is too imprecise to provide guidance, and, thus violates due process.

The Contempt Charge.

Mr. Cox may not be held in contempt for violating the order barring public participation in strike activities, for three independent reasons. First, he did not violate the order: driving a truck decorated with flags is not encompassed within its proscription. Second, the order infringes First Amendment rights and cannot sustain a criminal contempt conviction. An order that is “constitutionally void on its face is issued in excess of jurisdiction and cannot sustain a contempt judgment based on its violation.” In re Berry, 68 Cal. 2d at 147. Third, the order is too vague to sustain a contempt judgment. “A valid judgment of contempt cannot be based upon such a [vague] directive. ‘The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one.'” Id. at 156, quoting International Longshore. Association v. Philadelphia Mar. Tr. A., 389 U.S. 64 (1967).

For these reasons, we respectfully request that the Court strike the order barring public participation in strike activities and dismiss the pending charge.

Respectfully submitted,

Michelle Welsh (State Bar No. 84127)
American Civil Liberties Union of Northern California
Monterey County Chapter

Margaret C. Crosby (State Bar No. 56812)
American Civil Liberties Union of Northern California

cc: Honorable Kay T. Kingsley

Milton Gonzales
Attorney for Defendant Hallie Lake Cox

Cynthia Jewett
Office of the District Attorney