Costa Mesa’s Epic Free Speech Fail

Late last night, the Costa Mesa City Council voted to give the Mayor unilateral authority to charge disruptive speakers at council meetings with a criminal misdemeanor, as oppose to a non-criminal infraction; and of course, the law could have simply called for the speaker to be removed from the building. It is hard to imagine why this… um… crime… deserves such a draconian punishment. Whether the botched ordinance is the result of blinding incompetence or something more sinister is anyone’s guess. In any event, the city failed to do something incredibly simple and if not fixed it will have costly consequences for the people of Costa Mesa, and not all will suffer alike.

It is important to stress the serious nature of a misdemeanor. By this, I mean the seriousness of the classification itself and not the actual crime. In fact, the city did not even need to provide such a label. The ordinance could have just given the Mayor the discretion to have a speaker removed when said speaker’s conduct becomes “actually disruptive”. That is all the Supreme Court and First Amendment require. Seriously, it is not rocket science.

Misdemeanors are consequential, not just on the individual defendant, but for the criminal justice system. Unlike infractions, misdemeanors imply prison time. It does not matter how slight, the Supreme Court, and most employers, do not consider the length of the sentence, only its existence. Critically, misdemeanors, and not infractions, show-up on one’s criminal record. But even if the case is dismissed, charging information is preserved forever. In other words, even if all charges are dropped, this does not cleanse your record of the notations showing allegations, arrest and prosecution. And here is the sinister bit, the threat of the former does not just chill the right to free-speech but also threatens anyone who challenges its constitutionally with life-long stigma. Chilling indeed…

With respect to the criminal justice system, misdemeanor defendants are guaranteed certain rights under the Constitution because of the seriousness of the charge. These include the right to an attorney and the right to a jury trial, both of which are very costly to taxpayers. Moreover, misdemeanor cases can go on for several months and in some cases, such as those with Constitutional implications, last more than a year.

Misdemeanor charges threaten some groups more than others. For non-citizens, a misdemeanor conviction may: impact one’s visa, immigration status, immigration applications, entry into this county, and can result in deportation. Gun owners can lose their Second Amendment right to bear arms. As such, these groups will risk much more when they speak before the council. As such, the First Amendment rights of these two groups are being curtailed more severely because of the ordinance’s particularly chilling effect on their civic participation.

Beyond a fix, I would really like to know just how and why this seemingly easy task was botched so badly by the city staff. The City Council was assured over and over by the staff that the ACLU had approved the language in the ordinance. Some how… I doubt that very much. Mayor James Righeimer seemed to think, wrongly, that he was voting for an unchanged previous version of the law that was approved by the Courts. This is a troubling state of affairs in any event, but more so when taken in the realms of criminal and constitutional law.

Given the magnitude of the failure and the seriousness of the costs involved, heads should role down at City Hall, figuratively speaking. Moreover, something needs to be done to hold elected officials and city employees accountable for gross negligence in handling basic legal affairs. After all, this could end up costing Costa Mesa hundreds of thousands of dollars in legal fees; but the real kick-in-the-butt is this: by the time the bill comes due, only taxpayers will be left because the politicians will be long gone and off to higher office.

About Daniel Sterling Lamb

Daniel is an attorney in Orange County, California. A conservative activist born in Anaheim, he is driven by his dedication to fiscal responsibility and transparency in local governments. "Government does not solve problems—it subsidizes them” Ronald Reagan, first said in 1967 and used many times as governor of California and while campaigning for president of the United States. He loves that quote! Follow Dan on twitter @DanSterlingLamb