It’s ironic that right-wingers call progressives “snowflakes” (or, even more charmingly, “butt-hurt libtards”). It’s hard to imagine a liberal “snowflake” agitating for the arrest of a critic because that critic . . . snickered. But in our new, authoritarian, “Great-Again” America, one mustn’t hurt the feelings of Trump or any of his henchmen — like America’s Lilliputian lawman, Jefferson Beauregard Sessions The Third. Someone forgot to send that memo to a seditious Code Pink subversive named Desiree Fairooz, who chortled at Beauregard The Third from the cheap seats when the sponsor at his Senate confirmation hearing, Senator Richard “Just For Men” Shelby, suggested that Beauregard The Third had striven all his life to forge an “extensive record of treating all Americans equally under the law.”
Fairooz was thereupon arrested for felonious merriment in Trump’s America and, as she was being hauled off by Capitol jackboots, compounded her problems with some mouthy insolence directed against her captors. She was tried and convicted by a decidedly humorless jury.
I tell students that quaint political slogans like “America is the world’s greatest democracy” (it’s not even a democracy, for Christ’s sake – it’s a republic) and “the land of the free” are very warm and fuzzy, but they’re also, well, nonsense. In point of fact, I say, there’s no such thing as a free country, and to illustrate the point, I ask my classes what might happen were a student to test my hypothesis with a freedom-loving commute home at speeds exceeding 90 miles per hour. But I should henceforth use a different illustration: If you think this is a free country, try going to DC and committing felonious merriment at the expense of Jefferson Beauregard Sessions The Third.
Indeed, the case of Desiree Fairooz raises profound questions about life in what slippery demagogues like Beauregard The Third blithely call a “free society.” Namely, does the First Amendment permit the criminalization of the reflexive expression of beguilement? And can merely laughing constitute the actus reus of a crime (definition to follow)?
Happily, the judge in this case threw out the jury’s verdict. But he didn’t do that because this is a free country; he did it because laughing isn’t a voluntary act.
What about the First Amendment?
The First Amendment’s recognition of free speech has never been understood as creating absolute license to say whatever one wants under any circumstances. Some speech isn’t protected at all under the First Amendment because its expressive value is far outweighed by its attendant harm. Incitement to criminality, obscenity, and “true threats” are examples of such speech.
Even as to speech that is very much protected – like political, religious, or philosophical speech, for example – the government may impose certain restrictions. Not every government facility that is open to the public is considered by courts to be an appropriate forum for free expression. In a courtroom, for example, there is work to be done, and unruly activism is prohibited.
The same goes for a Senate hearing room. Although the public is welcome to attend Senate hearings, a hearing room is not a traditionally open forum for expression, but rather a place for the conduct of business – however silly much of that business might be. So when you enter such a hearing room, you pretty much shed your First-Amendment rights at the door. (Naturally, there are some nuanced legal rules involved in a public-forum analysis, but you get the picture.)
The government may also place what lawyers call reasonable time, place, and manner restrictions on protected First-Amendment speech. As the name (time, place, manner restriction) suggests, when the government imposes such a restriction, it is not targeting the content or subject matter of the speech; it’s just regulating where, when, or how expressive conduct or speech should take place. In the case of Desiree Fairooz, the government argued successfully that Fairooz was not arrested for what she expressed, but rather where, when, and how she expressed it.
Finally, sometimes ideas are expressed through conduct – as when one person flips another person “the bird.” Courts consider that to be speech because there’s a message intended – and received. The same goes for burning a draft card in a public place – that’s speech. Speaking of burning a draft card, there’s a famous Supreme Court case about that called United States v O’Brien. In that case, the Court ruled that although the government is not allowed to target such expression because of its message, the government may punish the harmful conduct associated with the speech if (and only if) the government is neutral and unconcerned as to the message. Think of it this way: you can’t be punished for burning a US flag in public because you hate America, but you can be punished for burning something in public in a way that causes a health or safety hazard – even if that happens to be a US flag. (What this means, if we’re honest, is that when the government targets speech that involves conduct, it has to do a good job pretending that its only concern is the conduct, not the speech.) In the Fairooz case, the government – again, successfully – argued that it didn’t arrest her because she expressed amusement or disdain, but because she caused a disturbance and interfered with the work of Congress.
In other words, the First Amendment left Fairooz high and dry.
So why did the judge toss the verdict?
Most crimes – including the crimes Fairooz was charged with committing – have elements, each of which must be proven beyond a reasonable doubt. Elements generally fall into two categories: actus reus (the act or conduct required for the commission of the crime) and mens rea (the mental state required for the commission of the crime – think intent, negligence, recklessness, that kind of thing). Most crimes – again, including the crimes at issue here – require both: a bad act and a guilty mind.
In your typical criminal case, we really don’t get to the mens rea part if we can’t even get past the actus reus part. Who cares what a defendant’s state of mind was in a murder case if the defendant didn’t cause the death of the victim in the first place? And here’s the rub with that actus reus part of a crime: it requires a voluntary act (in this sense there is even a mental component to the actus reus of a crime: a physical movement of some kind that does not result from a volitional choice is not a voluntary act upon which a criminal conviction can be predicated). For example, if I’m flailing about in the grips of a seizure when my clenched fist meets your nasal unit, I’m not guilty of battery. Although my body caused harm to yours, my act was involuntary and therefore cannot constitute the actus reus of a crime.
This brings us to Desiree Fairooz and her incredulous outburst during the hearing on Jefferson Beauregard Sessions The Third. The prosecutor, during his closing argument to the jury, told jurors that they could convict Fairooz on the basis of her laughter alone – regardless of all the fuss she allegedly kicked up while being dragged unceremoniously from her seat. There’s likely a reason the prosecutor went that direction; most of the fuss and ruckus caused during Desiree’s forced decampment was caused by the Capitol jackboots, not Desiree – and certainly being dragged around is not a voluntary act, even if one does grunt and moan all the way to the exits while being manhandled and knocked about.
The prosecutor neglected to tell the judge that he (the prosecutor) was going to argue that laughter alone could undergird a conviction, and that was a bad move. Already caught by surprise, and now pissed off, the judge let the case go to the jury hoping it would find Desiree not guilty – and thereby give the prosecutor a smack-down that the judge wouldn’t have to. But alas, the jury convicted, leaving the judge to decide whether to a) sentence Fairooz for the crime of merriment in Trump’s America, or b) throw out the verdict because the prosecutor’s argument was bogus.
Since the verdict could have been based on nothing more than Desiree’s laughter – per the prosecutor’s pre-verdict musings – the question became whether laughter alone can form the actus reus of a crime. That, in turn, raises the question whether laughing is a voluntary act.
Here the prosecutor’s case runs into trouble, because most of us had grown-ups around us when we were toddlers who, whenever we came down with a surly case of grumpy-face, pulled the old, “Don’t you smile. Don’t you dare smile!” routine, sending us into fits of involuntary snorting and cackling. The judge must have had such a grown-up around when he was coming up, because he ruled that laughing – especially the kind of laughing that one knows is naughty, as when one laughs at church or while giving a serious presentation – is not a voluntary act. Laughter alone, said the judge, cannot constitute the actus reus of a crime.
Free we may not be, but even in Trump’s America, although one may be forcibly displaced merely for laughing at the absurdity of it all, a criminal prosecution will not lie against the perpetrator of spontaneous bemusement.