Obviously, as someone from a country that has no codified constitution, I’m poorly qualified to comment on the constitutional arrangements of other nations, but…
The story of San Diego’s Jeff Olson really does give pause for thought. That link is to a Huffington Post piece which is also remarkable, I think, for the way in which the San Diego District Attorney’s office feels able to comment on a case that is still going through the court process. (Incidentally, the various judicial buildings in downtown San Diego include some of the most totalitarian architecture I’ve ever seen, but that’s another matter…).
As a quick re-cap: Mr Olson chalked anti-bank messages outside Bank of America premises – on average, every couple of weeks for about 6 months. The Bank objected, and insisted that 13 charges of vandalism be brought against Mr Olson.
Two things really puzzle me about the Olson case:
First, that it is apparently possible for a judge to restrict the free speech of a barrister in representing his client – effectively over-ruling the First Amendment rights of both the lawyer and the accused. OK, the judge is choosing to rule that the offences in question are offences of vandalism (graffiti) – but it seems a little perverse to rule (before the action comes to court, mind you) that an act of vandalism cannot simultaneously be an act of free speech.
Second, in this piece, the judge is quoted as justifying his decision by saying that “The State’s Vandalism Statute does not mention First Amendment rights”. And there I was, thinking that the whole point of a Constitution is that it sets the framework within which the rest of the law must be interpreted, precisely so that there’s no need to re-hash all the basic principles in every subsequent piece of legislative drafting.
Admittedly, all this doesn’t necessarily reflect a fundamental flaw in the concept of a written Constitution – it might just reflect the weirdness of a particular jurisdiction. But as I say, I’m a Brit, so what do I know?