Sunday, August 28, 2011

Free speech in California

I just filed this statement of my constitutional rights in California:
I have a First Amendment right to blog about matters of substantial public concern. Even if there is court order forbidding me to post certain documents, California law forbids punishing me for violating an unconstitutional order. Eg, see this 1962 case:
A series of California cases hold that the violation of an order which exceeds the court's jurisdiction cannot produce a judgment of contempt. … As Witkin states: the "view, long settled in California, is that a void order is never binding, and that its violation cannot constitute contempt. A party affected by an order may, and usually will, seek some orderly judicial means of setting it aside; but he may also ignore or disobey it at his peril. If he guesses wrong, he may be punished; if he guesses right, the final judicial determination that the order was without or in excess of jurisdiction is necessarily a determination that he committed no punishable wrong in violating it." (1 Witkin, Cal. Procedure, � 155, pp. 421, 422.) Brady v. Superior Court, 200 Cal.App.2d 69, 1962.
On May 28, 2008, Cmr Joseph conceded that a recent court decision showed that parties to a family court case have a free speech right to post events on a blog. He cited Evans v Evans, D051144 (Cal. App. 5/12/2008).

I also have rights under the rest of the Bill of Rights, such as a right not to testify.
California is actually one of the better states in this regard. In most states, you are bound to comply with unconstitutional orders. You can argue that the judge's order is unconstitutional, but even if you eventually convince the court, you can be punished for violations that occurred up until the order is officially rescinded. The idea is that only judges are supposed to interpret the Constitution, and not ordinary citizens, I guess.

California has the more enlightened view, and is much closer to what constitutional law is all about. The Constitution applies to everyone. If the Constitution says one thing, and some silly judge says something contradictory, then your allegiance should be to the Constitution.

Before the invention of the printing press, most people were illiterate, and the Catholic Church had the attitude that only priest and other officials should read and interpret the Bible. Without such authority, the Church could not maintain a coherent message to the public. The printing press changed all that.

In the armed services, you have to do what your commanding officer says, but you also have to obey the law. You hope your commanding officer does not give you an unlawful order, because that can make your life difficult.

I am going to trial for contempt of court because my ex-wife alleges that I posted quotes from reports that were ordered to be confidential. I don't think that I have violated any court orders. If court orders were interpreted that way, then they would be blatant violations of constitutional free speech rights. That means that the orders were null and void to start with, and under California legal precedents, I cannot be punished. I hope Judge Morse understands that.

1 comment:

Anonymous said...

My guess..another childish scheme by this "court". To what end, i don't know ?

Nevertheless, it's their court, and it is contempt, so you have to deal with it.

Good luck with it all.