Thursday, March 16, 2017

Smith County vs. the First Amendment

When local governments attack

What if I told you about a NATO-member nation that claims to be a champion of human rights;  that also receives huge amounts of funding from American taxpayers, in which the following types of injustices were happening?

  1. An author who disputes the government's official version of how a political leader was assassinated gets harassed by police for years and repeatedly arrested, even though he has committed no crimes.     

  2. A government official orders a police raid on the home of a blogger who has been exposing government corruption and accuses the blogger of violating a law that no longer exists.

  3. A political watchdog is arrested and convicted of a crime he did not commit.

  4. Government officials abuse their power and the authority of a court to track down and harass an anonymous blogger who has been critical of them.

You'd be thinking, tell us what nation this is, Joorie, so we can write letters to the Trumpster and to Mr. Gohmert and demand that we cut off ALL foreign aid to that country!  Problem is, faithful readers is that that country is the good ole U.S. of A.  That's right, 'Murrcah. Hell-yeah!

I grew up fearing the "jack-booted thugs" in the federal government, thinking that if my rights were going to be taken away, they would be the ones to do so.  But if I've learned anything in the past few years, it's that we need to fear governments at ALL levels.  Local governments, closest to the people, are also the ones that tend to abuse their powers in subtle ways.

Let's look at a few recent examples.

Dallas, Texas:  Robert Groden is an author and self-proclaimed expert on the JFK assassination.  He's been arrested or ticketed by the city of Dallas 82 times for trying to sell his books at a table he set up on weekends in Dealey Plaza, where Kennedy was assassinated.  All 82 times, he's been acquitted, because, well, selling books in Dealey Plaza is not illegal!  On one occasion, Groden, who was pushing 70 and in poor health, was held overnight in jail and was not given his medications.

So what was the beef city officials had with this guy?  Well, after 54 years, the JFK assassination is apparently still a touchy subject in Dallas.  Groden does not accept the "official" narrative of the assassination that is approved Dallas' Powers That Be:  that a single madman with a mail-order Italian rifle shot Kennedy from the School Book Depository building.  (It's the explanation that makes the most sense to me, but that's beside the point.)  So, when a guy like Groden starts hanging around, talking to tourists, babbling about the grassy knoll and the picket fence and "magic bullets" and stuff--well, we just can't have any of that, can we?

Houma, Louisiana:  In August, 2016, Terrebonne Parish Sheriff Larry Larpenter raided the home of Houma police officer Wayne Anderson and seized his computer.  The warrant was based on the accusation that Anderson had violated an obsolete anti-defamation law in Louisiana that had been ruled unconstitutional.  The sheriff believed that Anderson was the author of an anonymous blog that accused the sheriff and other parish officials of corruption.  (Damn, I'm thinking, that kind of thing could happen to me!)

Brownwood, TexasIn 2009 community activist and local government watchdog Joe Cooksey was arrested and charged with violating the Texas Open Meetings Act. He was prosecuted and convicted for allegedly illegally releasing the transcript of a lawfully closed meeting of the Brown County Commissioners Court.  Cooksey's  conviction was eventually overturned because the appellate court found that the meeting in question was not lawful after all.  So Ironically, it was his accusers who had violated TOMA in the first place!  Why was Cooksey targeted?  Probably because for years he had been openly critical of a number of local officials, including the county judge and had exposed their corruption online on a Facebook page titled "Brown County Watchdog." (Dang, this could happen to me, too!)

Oh, but these kinds of things would never happen here in Smith County, you might be thinking.  After all, this county is run by good 'conservative Republicans' who watch baseball, eat apply pie, love Jesus, and above all, respect the Constitution!

Tyler, Texas:  (This one actually did happen to me.)  It's not really a big deal, because nothing really bad happened to me, but it is still worth mentioning.  In 2015 and 2016 County Judge Joel Baker and members of the Smith County Commissioners Court were investigated by the Texas attorney general for alleged violations of the Texas Open Meetings Act.  During the investigation, they illegally  authorized the expenditure of around $46,000 from the county's coffers for their defense.*  One of the attorneys working for the commissioners court was tasked with trying to identify an anonymous blogger, "Joorie Doodie," who had been openly critical of the county judge and the commissioners for over two years.  The attorney erroneously associated the blogger with a "network of radicalism" and called Joorie Doodie's blog a "hate website."

After County Judge Joel Baker was indicted for the TOMA violations, he successfully petitioned the criminal trial court to order the county to release to the defense any e-mails containing the keywords "Joorie Doodie" or that were received by or sent to the blogger using county e-mail accounts.  Fortunately, I had been very careful to conceal my identity by using a virtual private network for all of my blogging activity.  Had this ruse been successful, Baker would have been able to identify the blogger without having to go through the legally arduous and expensive process of showing a civil court in a defamation suit that the material on the blog passed the "Cahill" test .

I can think of no compelling legitimate reason that public funds should have been spent by the commissioners court to uncover my identity.  And I think it is very unlikely that Baker's defense attorney thought that putting the intrepid blogger "Joorie Doodie" on the stand would help Baker's defense.  The only possible explanation about their motives that makes sense is that they hoped to be able to harass or intimidate me.

Okay students, what do all of the above cases have in common?  Answer:  Petty local government officials abusing their power to deprive citizens of their Constitutional right of free speech!

Smith County vs. the First Amendment

On March 14, 2017, KLTV aired a shocking, well researched report titled "Judge accused of sexting while sitting on judicial conduct board."  It was revealed that County Judge Joel Baker had exchanged over a thousand sexually-explicit messages--including partially-nude photos--with a woman he had never met, but had "friended" on Facebook. (KLTV won and Emmy for the report, by the way.)  Baker had sent and received some of the obscene messages while he was attending hearings of the State Commission on Judicial Conduct.  He also sent and received such messages when he was supposed to be attending an educational conference at taxpayer expense.

Needless to say, the next few commissioners court meetings were quite tense, and citizens lined up to speak out against Baker and call for his resignation.  But a number of speakers were cut short by Baker when they criticized him.  Baker even ordered a deputy to escort one woman out of the room after she referenced a 2011 incident** in which Baker was investigated on suspicion that he had tried to make a video recording of a young woman while she was in her bedroom.

So how did Baker justify his actions?  He referenced some "Rules of Decorum" for commissioners court sessions that he wrote himself in 2007 and had the commissioners sign.  He had the current set of commissioners sign an identical document in 2012.  One of His Excellence's decrees was that no speaker could "question the integrity of the Court or its members."

So, let's stop right there and review this confusing thing called the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [emphasis mine]

Okay, your disHonor, what if my "grievance" is that I believe an elected official lacks integrity?  Is there another amendment to the Constitution that says that I have free speech and stuff as long as I don't questions someone's "integrity?"  I think not.  So why wouldn't the First Amendment apply in commissioners court?  Well, Baker's assertion had been based on Texas' arcane form of county government, defined in Article V of the Texas Constitution, in which the chief elected official is, in fact, a "judge" and the commissioners "court" is therefore a real "court."  If you've ever been in a Texas courtroom, you know that the judge is God, and you defy him or her at your peril. possibly facing arrest and prosecution for contempt of court.  But I really don't think that argument would hold up in a federal or even a state court.  Sure, the county judge assumes a "judicial" role at other times, when he presides over mental health and probate hearings.  But when a county commissioners court is in session, it is functioning as a legislative body over which the county judge presides in a legislative role, much like the Speaker of the House presides over the House of Representatives.  Another way to put this is that your uncle may wear a dress sometimes, but that doesn't necessarily make him your aunt.

The Consti-WHAT-shun?

If you follow my argument, you might assert that the Constitution would not prevent the commissioners from prohibiting any public comment during their weekly meetings.  After all, I can't march into the Capitol, fill out a form and speak before Congress.  But it is well established that at times and places (such as state university campuses) where speech is allowed on public property, the First Amendment applies.  So it's all or none, commissioners.  Do you see what they are doing here?  By allowing some speech and censoring anything that is derogatory about themselves, the promote the impression that their constituents think everything is hunky-dory and they are doing a great job.

To be honest, I don't really care about going down there and speaking my mind.  When people go to that podium and speak, the clownishioners usually zone out and look at their computers.  There are probably more effective ways to communicate with them than in a 3-minute rant.  But think about the implications of this.  If the commissioners court chamber is a "courtroom," that means that the commissioners are also subject to the "Rules of Decorum."  Imagine the following scenario:  An important item like, say, the county budget is up for a vote.  Three of the commissioners oppose the budget, and the county judge and one of the commissioners support it.  The county judge could simply claim that two of the opposing commissioners questioned someone's "integrity" during a heated debate and expel them, leaving a majority of those left in favor of the budget.  Then call for the vote and, badda-bing, badda-boom!  The budget passes even thought three of the duly-elected commissioners (a majority) opposed it!

Why I'm still angry

So what did the commissioners--Cary Nix, JoAnn Hampton, Jeff Warr, and Terry Phillips--do when Baker shot these people down, one by one?  They did what they usually do, which was to sit there in silence with dumfounded looks an their faces.  But I'll give them the benefit of the doubt.  Maybe procedural rules prevented them from blurting out a protest during the meeting.  But what about after the meeting?  TV cameras were rolling and every journalist from within 50 miles was present.  I would have raised nine kinds of hell at that point.  But our commissioners?  Nothing.  But if you've followed this story without paying much attention you might say, but Joorie, they took action within a week.  That's true if by "taking action" you mean that they formed a toothless committed chaired by their own employee to "study" and "discuss" the problem.  Why does this require a "committee" and "further study" clownishioners?  All you had to do was to take out the part about not questioning whoever's integrity and be done with it.

Smith County make Kim proud!

And what's really an outrage is that a year later, nothing has been done.  Click on the county website and there sits Joel Baker's "Rules of Decorum," in all its glory.  That bogus committee met a few times and the clownishioners have "discussed" it.   The last reference I could find to the matter was in the September 6 commissioners court meeting .  They talked about giving the clownishioners the option of overriding the county judge if he wanted to terminate a speaker's time, but were not too keen on taking out verbiage that prohibited speakers from criticizing them.  Ah, but they took 'decisive action' again on the matter--that is if by 'decisive action' you mean turning it back over to the attorney for 'further study.'

So what can be done?

I'd love for someone to challenge this in court.  I'd do it myself if I could:  I'd pound my fist on the podium and call them a bunch of jackasses, refuse to step down, get arrested, and come back and sue their asses.  But I don't have the time, financial means, or social status to pull something like that off.  And frankly, from a pragmatic standpoint, speaking at those meetings accomplishes little.  After all, there are about 25 people present, and virtually NOBODY takes the time to watch the recordings of the clownishioners court meetings online.'

Ah, but we have a new weapon that is a great equalizer, faithful readers--the internet!  There's nothing they can legally do about my blog.  Not into blogging?  Well you always have e-mail.  Back in the day when televisions had vacuum tubes and kids played with lawn darts, you had to fire up the old Underwood typewriter, angrily peck out a letter to an elected official, scrounge around to find an envelope, lick a stamp...Now you just sit at your desk during lunch break and fire off an angry e-mail--or dozens of angry e-mails--to whoever you want.  Sure, you can use the telephone, if that suits your fancy.  But I prefer to compose my thoughts instead of just ranting free-form over the phone.

Don't think it would have an effect?  Probably not if only a few people did it.  But consider this: These people want to stay in office, meaning they care about being reelected.  One e-mail from the blogger Joorie Doodie is just another rant from a member of the "tinfoil hat" crowd.  Ten e-mails tightens the sphincter a little, and a hundred emails is a veritable friggin' insurrection!

So let 'em have it:

County Judge Nathaniel Moran:  903-590-4600
Precinct 1 Commissioner Jeff Warr: 903-590-4601
Precinct 2 Commissioner Cary Nix: 903-590-4602
Precinct 3 Commissioner Terry Phillips: 903-590-4603
Precinct 4 Commissioner JoAnn Hampton: 903-590-4604

*Since none of the commissioners was charged with a crime, it would have been legal for the county to pay for their legal defense, as long as, a. each commissioner's expenses would have been approved individually, and b. the commissioner whose reimbursement was being approved abstained from the vote for his or her reimbursement.

**The lady was out of line in that she accused Baker of making "child pornography" and insinuated that the person Baker was allegedly attempting to videotape was sixteen years old.  The police report reflects that the young woman was an adult.  That said, who gets to decide in public debate what is truthful or not?  Hell, if you apply that standard, most of anything politicians say would be censored!

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