This is interesting. A woman here in California is getting charged with a misdemeanor for organizing a protest during a local and statewide COVID-19 stay-at-home order. According to ABC News 10 in San Diego and the San Diego Union-Tribune, Naomi Israel allegedly organized a large protest outside of the San Diego Hall of Justice. Law enforcement claims that this protest violated a San Diego County order against large gatherings during the COVID-19 crisis. If she is convicted of this misdemeanor, she could face 90 days in jail and a fine of $1,000. The San Diego County Sheriff says they met with Ms. Israel and warned her that the gathering violated the law, but she went ahead with it anyway.
While I don’t know all the facts of this case, off the top of my head, here’s what would go through a defense lawyer’s mind when analyzing the case. To be clear, I don’t represent Naomi Israel, I don’t know Naomi Israel, and this should not be considered legal advice for anyone.
What about the First Amendment? Can someone get charged with a crime just for urging people to gather somewhere and protest? Does that really count as “organizing” a protest? What if nobody showed up to the protest? Would she still be charged? Was she the only one posting about the protest? I’m sure not. Was she arrested because she was the most persuasive? Is that a crime? How is that not protected speech under the First Amendment? On the other hand, the First Amendment right to freedom of speech and freedom of assembly is not absolute. Especially in times of a declared emergency.
A big mistake may have been meeting with the police the day of the protest. At that point she may have been taking some ownership or responsibility for the whole event. If the police told her not to go ahead with it, if they advised her on the law and that this would be a violation, and she went ahead with it anyway, that could be a problem. Lesson here is, as always, if you’re the target or subject of a police investigation, never ever talk to the police without first consulting an attorney.
So how does a case like this end? Tough to know. If charges are actually filed, Naomi Israel may want to take this case all the way to trial. She may not be worried about the conviction so much; she may want to test the law and try to vindicate her First Amendment rights. It all depends on her appetite for risk.
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