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Demonstrators in favor of the Obama Administration's Affordable Care Act outside the U.S. Supreme Court moments before the court announced its opinion in the subsidies case King v. Burwell, ruling in favor of the government. June 25, 2015. Photo: Diego M. Radzinschi/NLJ

Five protesters who disrupted a U.S. Supreme Court session with shouts and songs in 2015 should be sentenced to prison time and barred from the grounds of the court for a year, government lawyers said in court filings Monday.

The protesters’ “extremely loud and moderate lengthy outburst … destroyed the respect and reverence given to the serious legal issue that was being considered,” Assistant U.S. Attorney Lisa Walters wrote in a sentencing memorandum.

The memo went on to state that “to protect the integrity and impartiality” of the high court, its justices “should not be subjected to drama-filled and politically charged speeches and theatrics in the courtroom.”

The incident occurred on April 1, 2015, soon after the justices entered the courtroom but before oral arguments began. One after another, from different parts of the spectator gallery, five protesters rose to voice their objection to the 2010 Citizens United decision loosening restrictions on independent campaign expenditures.

“We rise to demand democracy,” one said. “Justices, it is not your job to ensure free, fair elections?” asked another. A third protester broke out into a song that began with, “We who believe in freedom shall not rest.” Court police scrambled to seize and remove each of the five, who were charged with violating federal laws barring “harangues” and “orations” in the Supreme Court.

Audio of the episode that surfaced later during discovery included “hot mic” comments from justices while the demonstrators spoke. “Give them stiff, stiff sentences,” Justice Antonin Scalia muttered. “Oh, please,” Chief Justice John Roberts Jr. said as a protester popped up.

After unsuccessfully challenging the laws on First Amendment grounds, the defendants in May pleaded guilty to two counts of violating the pertinent laws. U.S. District Judge Christopher Cooper of the District of Columbia will sentence the protesters at a hearing on July 24.

In a recent online statement, Matthew Kresling, one of the defendants, said the protest was timed to coincide with the first anniversary of the court’s decision in McCutcheon v. Federal Election Commission, which struck down a limit on aggregate campaign contributions.

“When a protest is being organized that will probably result in prison time, you generally don’t raise your hand to participate unless you feel as if you’ve exhausted the other options,” Kresling said. “But the avenues for citizens of average wealth to play a role in their democracy have been systematically closed.”

In the sentencing memos, the government said the defendants should be sentenced to 10 days in jail on each count, running concurrently, as well as one year of supervised relief, a year of being barred from the court building and grounds, and a $100 fine.

“An incarceration sentence will promote respect for the law because it will send a clear message that this type of disruptive, uncontrollable conduct will be tolerated,” Walters wrote, “especially when it interferes with the adjudication of cases and administration of justice.”

Lawyers for the defendants who also filed sentencing memoranda on Monday said jail time was not warranted, in part because similar protests in 2014 and 2015 resulted only in one-day sentences of “time served.”

Washington lawyer Jeffrey Light, who has defended court protesters for years, also told the district court that while the actions were illegal and disruptive, “the disruption occurred at a time when oral arguments were not taking place and therefore did not even impede any party’s ability to make a presentation to the court in an orderly fashion.”

 

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

 

 

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