Judge Mark Mahon

Judge Mark Mahon

A Florida judge has quickly backtracked on his order barring people from criticizing the court on its property but not quickly enough to avoid a lawsuit over the speech restrictions.

WND reported only days ago that in response to a protester who shouted that the judicial system is corrupt, Judge Mark Mahon of Florida’s Fourth Judicial Circuit released an order for the arrest of anyone outside the courthouse, including on certain public sidewalks, who questions “the integrity of the court or any of its judges.”

“Demonstrations or dissemination of materials that degrade or call into question the integrity of the court or any of its judges (e.g., claiming the courts, court personnel or judges are ‘corrupt,’ biased, dishonest, partial or prejudiced), thereby tending to influence individuals appearing before the courts, including jurors, witnesses and litigants, shall be prohibited on the Duval County Courthouse grounds,” the judge wrote.

“Any person engaging in the type of expressive conduct as indicated in this order may be found in criminal contempt of court,” he continued. “The Jacksonville sheriff’s office shall give any person on the courthouse grounds who is violating any provision of this order a copy of this order and advise such person of the relevant restrictions herein.”

He said the sheriff’s office “is hereby DIRECTED to arrest” anyone continuing with such statements after being warned.

Legal experts immediately declared the order likely was unconstitutional, and the day after WND’s report, Mahon issued another order to replace the older one. But the new order focuses on a ban on photography of secure locations, security systems and people in those locations.

However, in the interim, two photographers, Thomas James Covenant and Jeffrey Marcus Gray, filed a lawsuit against the judge.

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The documentation has been posted online by the Florida Times-Union newspaper in Jacksonville.

It points out that the judge’s superseded order, which had been issued on July 1, was “a content-based, viewpoint-based prohibition of speech and other admittedly ‘expressive conduct.'”

“In recent months, plaintiffs and other [Photography Is Not A Crime]-affiliated journalists have been protesting, demonstrating and otherwise engaging in core political speech and other expressive conduct on and in the vicinity of the Duval County Courthouse grounds. This expressive conduct has, at times, consisted of criticisms of judges, police officers and other public officials,” the lawsuit explains.

It argues the judge’s original order “impermissibily infringes on plaintiffs’ right to free speech, protected by the First Amendment, which is incorporated against the states by virtue of the Fourteenth Amendment.”

It censors “core political speech” and is “an unconstitutional prior restraint of speech,” the case argues.

The case, filed in federal court in Jacksonville, seeks a declaration the order is unconstitutional and a prohibition on its enforcement.

The judge’s decision to drop the order, replacing it with one focusing on photography, is a good step, the plaintiffs’ lawyer said.

Andrew Bonderud, who is representing the two photographers, told the Jacksonville paper: “It’s a step in the right direction. There’s no question about that.”

Mahon had declined to respond to WND requests for comment. and the newspaper reported the same result.

Bonderud told the newspaper the original order was “ripped straight from the pages of Fidel Castro’s operating plan.”

While the first order targeted anyone who makes claims that the courts or its personnel are “biased, dishonest, partial or prejudiced,” the replacement simply limits protests that “unreasonably disrupt, disturb, interrupt and interfere with the impartial and orderly conduct of the judiciary.”

Bonderud told the newspaper that he’s studied in Cuba, and the rule is that one can argue on behalf of communism and the Cuban revolution but not against it.

“And that’s exactly what’s going on here. It’s alarming. It’s very, very alarming,” he said. “It’s perfectly analogous to the censorship that goes on in Cuba.”

The original order allowed special exemptions for the news media, but at the Washington Post, legal scholar Eugene Volokh assessed the order and concluded it probably is unconstitutional.

Volokh, who teaches free speech law, religious freedom law, church-state relations law and more at UCLA’s School of Law, said what appears to be the worst constitutional violation was Mahon’s order that includes “all perimeter sidewalks around the courthouse” in the prohibited zone.

“All public sidewalks near the courthouse are ‘traditional public fora’ … in which content-based speech restrictions – and, even more clearly, viewpoint-based speech restrictions such as the one in item 3 – are unconstitutional,” he wrote.

Volokh said some courts have allowed restrictions on speech outside courthouses that advocates jury nullification, but he thinks even that is wrong.

“Whatever courts might say about this sort of specific call for juries to disregard judges’ instructions, this can’t be extended, I think, to general condemnation of the character of judges – public officials (in Florida, elected officials) who must always be subject to public scrutiny and criticism.”

The protesters’ concerns about the integrity of Florida’s judges were not detailed, but judicial ethics have been in the headlines in recent weeks because of the public actions and statements of two members of the U.S. Supreme Court on behalf of “same-sex marriage” while that issue was pending before their court.

Recusal motions had been submitted for both Ruth Ginsburg and Elena Kagan in the case, because both publicly performed same-sex ceremonies.

Joe Miller, who at one time was the youngest U.S. magistrate in the nation, called their actions a violation of the code of ethics for judges.

And WND reported when Alabama Supreme Court Chief Justice Roy Moore said Ginsburg could be impeached for her public advocacy of “gay” rights while the court was reviewing that very issue.

A brief in the case from the Foundation for Moral Law explained: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous. … It would not take a large adjustment.'”

Ginsburg’s interview was with Bloomberg News on Feb. 12.

The foundation’s motion said the “extrajudicial comments about a matter pending before the court violate Canon 3A(6) of the Code of Conduct for United States judges: ‘A judge should not make public comment on the merits of a matter pending or impending in any court.'”

The controversy resurfaced shortly before the decision was announced, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.

The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”

See Ginsburg’s comments:

 

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