The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Activists at 99Rise have staged another filmed protest inside the Supreme Court's courtroom. I want to know what readers think: What's the proper criminal punishment for the 99Rise Supreme Court protesters? I'll start with some background about 99Rise; then turn to what they did in their series of protests; and then cover the punishments for the two earlier protests. I'll then ask readers to take a poll about what punishment would be the appropriate punishment this time.
I. What is 99Rise?
First, some background. 99Rise is an activist group whose members believe that the government is not enacting "the progressive promise of the American Dream" because of Big Money in politics. According to its website, 99Rise has a Grand Strategy to stop Big Money consisting of four phases:
Phase 1: Build the movement through creative nonviolent actions, forming teams, doing trainings
Phase 2: Escalate to mass civil disobedience to create a moral & political crisis
Phase 3: Unite the movement around a common agenda of Constitutional & legislative reform
Phase 4: Escalate to mass noncooperation, if necessary, until the reform agenda is enacted
By using "strategic nonviolent resistance" to cause a national crisis, the group hopes to usher in a constitutional amendment to ban the influence of the richest 1%. Thus the name 99Rise, with the idea being that the 99% should rise up and stop the influence of the 1%.
II. The Supreme Court Protests
The most visible part of 99Rise's strategy has been to stage protests inside the Supreme Court courtroom. I gather there are two reasons why they protest there. First, the group opposes the Supreme Court's First Amendment cases in the area of campaign finance. The Supreme Court has held that banning the spending of money to pay for speech is a way of regulating speech that can violate the First Amendment. If it takes money to get out a political message, the Court has held, then blocking the spending of money to get out the message squelches the message. 99Rise disagrees with these cases and wants a constitutional amendment overturning them.
Second, 99Rise targets the Court because, ironically, it gets them tons of free press attention. It often costs a lot of money to get the word out about a cause. Taking out advertisements would be really expensive. But because Supreme Court proceedings are not videotaped, 99Rise gets a lot of free press coverage when it sneaks cameras into the courtroom, films its protests, and releases the video of the protest and subsequent arrests. The protests have draw coverage from most major media outlets. The press even covers the group's decision not to have a protest. And 99Rise doesn't have to pay a dime for any of it. I guess you could put it this way: Their strategy is to do newsworthy things to get the word out without having to pay for it, all to stop other people from getting the word out by paying for it.
There have been three protests so far. In each, one or more protesters stands up and starts speaking about 99Rise's causes. The protesters are carried away by court security officers, and the event is filmed by someone else in the group who has brought a hidden video camera inside the courtroom. The video is then packaged up and released to the public for all interested parties to see.
The first protest was in February 2014. The video, available here, has over 350,000 hits. The second protest was on January 21, 2015, and can be watched here. Below you'll find a picture of the protesters from the two protests together. The guy in the black shirt is Kai Newkirk, the 99Rise co-founder who was the protester in 2014. The folks in the white shirts are the protesters from the January 2015 protest. They call themselves "the Supreme Court 7."
Finally, the last of the three protests was Wednesday of this week. The video is below:
And here's a photo of the five protesters arrested this time:
III. The Punishments Meted Out, or Pending, For The First Two Protests
We're now approaching the big question: What's the proper punishment, if any, for the latest round of 99Rise protestors? But before we get to that, you may want to consider the punishments in the earlier rounds of 99Rise protesters. (Almost there, I promise—this part is quick.)
After the first protest in 2014, by 99Rise co-founder Kai Newkirk, Newkirk was arrested, spent the night in jail, and was later sentenced to time served. Newkirk declared the protest a huge success for 99Rise:
So far, the response on social media, people going to our website, people covering it in different media venues—the web, to TV, print, radio—has been incredibly encouraging. . . . That's been incredibly heartening to see and that is what we wanted.
After the second protest, by the "Supreme Court 7," all seven protesters plus another who filmed the protest were charged. Two of the protesters pled guilty and were initially sentenced to five days in jail. The judge revised her sentence soon afterwards, however, to just one day in jail. Press reports indicate that the remaining six defendants have not yet either gone to trial or pled. Five of the six appear to be trying to see if they are eligible for pre-trial diversion, by which the charges will be dropped if they stay out of trouble for a while.
IV. Reader Poll: What's the Right Punishment For the Third Set of 99Rise Protesters?
And finally, answer the question below: What's the proper punishment for the third round of 99Rise protesters? The conduct was clearly a criminal offense, so I'm not asking a legal question. Rather, I'm asking a policy question: What is the appropriate punishment, if any, that could serve the proper ends of punishment such as deterrence and justice? To minimize framing effects, please try to come up with the proper punishment before you read the different options. Then, pick the answer below which comes closest to your view.
The proper punishment for the third set of 99Rise protesters is: None, because they should not be prosecuted Probation or community service but no jail time Up to one day in jail Between one and seven days in jail One to two weeks in jail Two weeks to a month in jail One to two months in jail More than two months in jail
Comments welcome in the comment thread, of course. Please keep it civil, as always.