City Council Repeals 102-Year-Old Sedition Law Used To Punish Speech

Speaker 1: 00:00 The idea of being arrested and charged with sedition, which is conduct or speech inciting insurrection toward the established order, seems like a Relic from a century ago. That's because the federal sedition act established after world war one to quilt critics of the war and the government was repealed by Congress in 1920, the San Diego city council finally got around to doing something similar this week. Joining me to discuss the unanimous decision to abolish the city's seditious language ordinances. Jonathan Markovitz staff attorney with the American civil liberties union in San Diego. Welcome to midday edition. Thanks very much. We'll start with, uh, what the San Diego municipal code said about sedition. Speaker 2: 00:42 So it prohibited, um, words that have a tendency to create a breach of the public peace in the presence of other people. The heart of the problem with the code is that it flagrantly violates the first amendment. Um, there is no requirement in the code that the language that's being used will incite violence, um, that it's likely to incite violence, that it is directed to inciting violence, um, or that imminent violence or imminent lawless action is a likely outcome of the speech. Um, so it is a ordinance that criminalizes really just pure speech. Um, but the other thing to say about it is that it's an ordinance that whatever the actual words are doesn't seem to have been enforced in a way that has anything to do with what's addition is traditionally thought of which is an effort to overthrow the government. Um, it's addition as enforced by the San Diego police department seems to have entailed things like officers who were displeased with, um, people who were playing rap music too loud, or people who insulted them. Speaker 2: 02:02 Um, there's really good solid uncontroverted case law saying that contempt of cop is not a crime. Um, so the, the police for very, very long time have been arresting people or citing people, I'm sorry for really nothing more than pure speech. And that is again, just a flagrant violation of the first amendment. Um, one of the things that indicates just have starkly unconstitutional, this lie is, is that it appears that nobody in city government, um, had any interest in defending it. Um, as soon as the voice of San Diego reported on it, the, the city pretty much everybody in, in city government seems to have acknowledged that it was unconstitutional, that it was antiquated and that it should be repealed. And so it's great that it finally was the difficulty with that, I think is that that only goes for the, that only affects issues and people going forward. It doesn't affect the harm that the department in the city created by enforcing this blatantly unconstitutional law in what appears to be a racially discriminatory manner for a very long time, Speaker 1: 03:20 Right? There's evidence that the law in San Diego really affected people of color, right? Speaker 2: 03:26 The numbers that I've seen are the 30% of the people who were ticketed were, were black. Um, African Americans make up only about 6.5% of the city's population. Um, there were dozens of different officers according to the reporting, um, who issued citations under this law. It's just since 2013. So this appears to have really been a systematic, um, use of an unconstitutional ordinance. And one of the, the, I think really key questions is how did this happen? Speaker 1: 04:01 I was just going to say, what precipitated this? How did the law come about in San Diego? Speaker 2: 04:07 The law is, is a hundred years old. Um, I think voice of San Diego has done some reporting on it. It's a Relic of an era in which there was kind of unquestioned sense on the part of many government officials that it was permissible to do whatever you could do to quell dissent. Um, and I think that that, that understanding of what government authority was, is fortunately for the most part, a Relic of the past, Speaker 1: 04:39 Right. And why do courts allow it here? If it's a, if it's against the first amendment and unconstitutional, uh, why in the world, uh, didn't a defense attorney say, Hey, uh, raise these issues and stop these cases as they went forward. Speaker 2: 04:54 It's a really good question. And I think the answer probably has to do with the fact that the citations were issued as infractions rather than misdemeanors. So that meant that people weren't directly hauled into court. They weren't directly brought into the criminal justice system and they probably, they may not have had defense attorneys. Um, they, the, the way that I suspect this became a problem, a very serious problem for a lot of people who are resided, um, is if they were unable to pay their initial fines, um, if they were issued later warrant for that failure to, to pay fines or for failure to appear in court. Um, at that point there would have been probably some kind of judicial oversight, but when it was at the infraction level, I think that a lot could really escape judicial oversight Speaker 1: 05:52 In August. The police chief in San Diego told the officers to stop enforcing the language law and, uh, the city attorney's not got any of these cases anymore. What does that tell you about the department's progress in updating antiquated models of policing that have disproportionately impacted people of color? As it said, Speaker 2: 06:11 I think the fact that there were so many citations issued for so many years suggests that there's very little progress. The fact that the, the chief ordered an end to enforcement and that the city ultimately repealed the law is great, but I think it probably has to do with just how openly unconstitutional, blatantly unconstitutional and indefensible the ordinance was once the city was called on it. And once the police department was called on enforcement, I think they really just had no way to continue enforcing it. And, and repeal was the only thing that made sense. The fact that this is one of many kinds of biased policing that have been documented in the city in recent years, um, by the San Diego state university study by, um, the campaign zero study, um, suggests that progress really is probably not the right term when thinking about the police department and racial bias. Speaker 2: 07:14 Um, I think that if we want progress, then this is a step. Um, the city, I think, needs to come to terms with the harm that it's inflicted on the people who were cited here. So I think that it needs at the very least to expunge people's records, it needs to refund any fines that they paid. It needs to look to see if there were secondary charges, failure to appear, failure to pay, um, and expunge those records and make people whole pay those fines back or never return any funds to people. Um, but it also, I think, needs to take a serious look at decriminalizing, other offenses that should've never been criminalized. It needs to look at at traffic stops that are disproportionately effecting people of color. It needs to really take decriminalization much, much more seriously. Speaker 1: 08:08 Now, council members didn't want to stop with just overturning this. They want to investigate why it remained on the books for so long and why police were trained to cite people for seditious acts. Uh, that's pretty important, right? Speaker 2: 08:21 I think absolutely. I think that, that, again, this appears to have been a racially biased form of policing. It appears to have been a form of policing that really just targets behaviors that cops found, um, or that police found to be unappealing. Um, and there should be an investigation to how this was allowed to happen. How were the police allowed to penalize people for nothing but pure speech for so long and were they trained, do it, um, who trained them? What kinds of policies were in place that made this acceptable? Speaker 1: 09:04 And I'll know both president Trump and his attorney general William Barr have urge federal prosecutors to charge those involved in violence at protests with sedition, that's alarmed some us attorneys, even as Trump attacks the integrity of the election with lies about voter fraud. BARR went so far as to suggest CA Seattle's mayor, Jenny Durkan be criminally charged for allowing a police free protest zone for a time. What do you think about that? Speaker 2: 09:28 I think that we're living in really troubling times and that the federal overreach and seeking to impose criminal penalties on people who are engaged in peaceful protest really strikes at everything that makes a democracy possible. Speaker 1: 09:54 I've been speaking with Jonathan Markovitz staff attorney with the American civil liberties union in San Diego. Thanks very much. Speaker 2: 10:01 Thank you.