Supreme Court Protester Sentenced to Time Served

Supreme Court Protester Sentenced to Time Served Photo: Diego M. Radzinschi/NLJ. U.S. Supreme Court.

With the U.S. Supreme Court’s lawyer watching, the protester who was arrested for disrupting oral argument on Feb. 26 pleaded guilty Tuesday in D.C. Superior Court and was given a light sentence.

Noah Kai Newkirk could have been sentenced to nine months in jail and fined up to $15,000 on the three federal charges to which he pleaded guilty. But Superior Court Judge Juliet McKenna sentenced Newkirk to time served—he had been detained overnight after his arrest—and ordered him to pay $150. The fine will be paid to a fund for crime victims.

In a statement to the judge, Newkirk said he had spoken out at the Supreme Court and broken the law “in the tradition of civil disobedience” to draw attention to the court’s 2010 Citizens United ruling and the then-pending McCutcheon campaign finance case.

“Our democracy is greatly threatened” by the court’s decisions weakening restrictions on campaign money, Newkirk told McKenna. “The Supreme Court has played a shameful role.”

The sentencing concluded a morning marked by hallway negotiations in which the Supreme Court—represented by court legal counsel Ethan Torrey—played a significant behind-the-scenes role. Torrey was present in the courtroom, as was a Supreme Court police officer.

After the session was over, the officer handed Newkirk a “barring notice” alerting Newkirk that he is prohibited from setting foot on Supreme Court property for the next 12 months. Earlier, Newkirk’s lawyer, Jeffrey Light, told McKenna that Newkirk, a resident of Los Angeles, had “no intention to return to the Supreme Court to do this again.”

Newkirk made headlines Feb. 26 when he stood up toward the end of arguments in a routine patent case and said “Money is not speech,” and urged the court to overturn Citizens United. Court police removed him from the court. He was arrested under the federal law that bars harangues, objectionable language, disruptions and demonstrations on Supreme Court grounds.

Such episodes are rare but what made the this one unique was that 99Rise, the activist group Newkirk affiliates with, soon posted online a video clip of the disruption—evidently taken with a pen camera or other device brought into the court secretly. In addition, the court was criticized for later deleting the audio of Newkirk’s statement from the recording of the oral argument.

Light, Newkirk’s lawyer, said that in the weeks after the episode, federal prosecutors offered to drop the charges if Newkirk agreed to stay away from the court for six months. Newkirk rejected the offer, Light said, leading to discussions about other possible agreements.

On Tuesday morning, Light told the judge that Newkirk had reconsidered and would be amenable to the initial offer. Assistant U.S. Attorney Jennifer Boschert said in response that the government had changed its mind and withdrawn the deal. Judge McKenna pointedly ordered Boschert to call her supervisors again to see if the offer could be reinstated.

Boschert and a colleague, Scott Ray, then left the courtroom, along with court counsel Torrey. Light said that in a hallway discussion, Boschert and Ray told him the Supreme Court did not want the charges dropped, and its wishes had to be honored. But the prosecutors also did not seem interested in Newkirk serving jail time. For his part, Newkirk decided to plead guilty to the three charges, taking his chances on the punishment.

Boschert returned to the lectern to tell the judge that after consulting “several supervisors” and the Supreme Court’s counsel, the earlier agreement was “off the table.” Light told the judge that Newkirk planned to plead guilty, and McKenna announced the lenient sentence.

Afterward, Newkirk said he was “very pleased” with the outcome of the hearing. “Judge McKenna seems to have a healthy respect for democracy,” he said. “I wish the Supreme Court had the same respect.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

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