Attorney General Jeff Sessions is a notorious racist. He prosecuted a former aide to Martin Luther King, Jr. after the former aide helped black voters cast ballots. He once claimed that immigrants “create cultural problems.” The Senate Judiciary Committee voted in 1986 to deny him a federal judgeship due to concerns that he is racist. At the time, Coretta Scott King wrote a letter opposing his nomination, arguing that Sessions could have a “devastating effect” on her husband’s goals of advancing racial equality.
So, when Sen. Richard Shelby (R-AL) claimed at Sessions’ most recent confirmation hearing that Sessions’ record of “treating all Americans equally under the law is clear and well-documented,” Desiree A. Fairooz, a spectator who says she attended the hearing in silent protest, let out a chuckle.
For this chuckle, she was arrested, dragged out of the hearing by Capitol police, and eventually convicted of disorderly conduct and “parading or demonstrating on Capitol grounds.” She could receive up to a year in prison.
Another protester escorted out of Sessions hearing. Her original offense appeared to be simply laughing. pic.twitter.com/p6lWzBVFRW
— Ryan J. Reilly (@ryanjreilly) January 10, 2017
Fairooz claims that the laugh that led to her arrest was “spontaneous” and not a premeditated effort to disrupt the hearing.
As a constitutional matter, Congress does have the lawful authority to prevent its business from being disrupted. The First Amendment permits certain “time, place, and manner” restrictions on speech, and that can include the power to remove a protester who prevents the government from conducting its business. Fairooz didn’t help her case by loudly protesting her arrest while it was happening.
But — even if you assume the rather dubious proposition that police were legally justified in arresting Fairooz for her initial laughter — her case highlights a number of pathologies at the heart of our justice system.
The law gives cops and prosecutors enormous discretion to ignore some violations of the law and bring the hammer down on other violators. The cops in this case could have simply ignored Ms. Fairooz’s initial chuckle and few people would have noticed it. Instead, they decided to create a much greater disruption by pulling her out of the room.
Similarly, the prosecutor could have decided that this matter wasn’t worth a court case. Instead, they decided to bring the full force of the law down upon a woman whose crime was protesting the prosecutor’s boss.