San Diego “Sedition” Citations should be expunged and Police disciplined
Online publication The Voice of San Diego featured yesterday an article about how San Diego police have been using a World War I era city ordinance to arbitrarily punish criticism of policing. As an attorney experienced in civil liberties law, I will explain why police are abusing the city “sedition” law, and what should be done about it.
The law in question is Section 56.30 of the city code that prohibits the expression of “seditious language” or to express anything else “having a tendency to cause a breach of the peace.”
According to Voice writer Kate Nucci, police issued 83 “seditious words” citations since 2013. The most recent citation was this May.
Courts have not ruled on this law because police write alleged violations as an infraction, like a speeding ticket. For not appearing in court, the fine is $300. The city turns over unpaid fines to a collection agency.
“Contempt of Cop” is a Constitutional Right.
Although “sedition” means to advocate the overthrow of a government by force or violence, police issued most or all of the citations when a citizen annoyed them. In laymen’s terms: “Contempt of cop.”
Nucci cites a 1987 U.S. Supreme Court case that struck down, 8-1, a Houston ordinance that criminalized “verbal abuse” of a police officer. Therefore, there should be no doubt that these 83 citations are all invalid.
The fact that in 80% of the cases where race was listed, the person is African-American, suggests city police apply the law in a racially-discriminatory way.
Moreover, few if any of the citations involve either advocating overthrow of the government or expression “having a tendency to cause an immediate breach of the peace.” The entire situation involves systematic abuse of police authority.
All citations and related “failure to appear” citations should be invalidated. Moreover, authorities should retire or discipline all supervisory personnel responsible for this travesty of justice. No one this ignorant of the law should police people in San Diego.
Sedition Laws have a Dubious Heritage
The passage of the law in 1918 betrays it’s origin. Many American opposed U.S. into World War I. As a result of the War, and also support for the 1917 Russian Revolution, “sedition” laws proliferated.
In 1918, the U.S. Supreme Court upheld the overall principle that the government can make criticizing the government illegal. In 1925, the high court also approved similar state laws that prohibited advocating using force to overthrow the government.
San Diego enacted its “sedition” law in this environment.
However, starting in the 1940s, the U.S. Supreme Court began emphasizing that the First Amendment protects the right of people to say unpopular things. For instance, in 1949, the Supreme Court dismissed the prosecution of a Catholic priest whose speech sparked a violent counter-demonstration. Although the man arguably caused a breach of the peace, he could not be prosecuted for conduct protected by the First Amendment.
Nucci recounts the landmark 1968 Brandenburg decision that declared a nighttime KKK rally in a forest to be protected speech. In 2012, a federal judge declared that an armed right-wing militia member could lawfully call for killing police officers.
If the Hutarree Militia can advocate killing police officers, then merely insulting San Diego officers, or using rude words in their presence, cannot be a crime. City police officers should learn this hard and fast.
Swift discipline of the officers responsible must be part of the immediate public response, along with repeal or a sharp revision of this 1918 chestnut of a law. This is especially urgent given the likelihood of major protests against economic insecurity caused by the COVID Crisis.