The Fictional Mob

[Clanton, Brad]

Michael Masinter wrote:

"Brad mischaracterizes the demonstraters as observers.  They were not
observers in the sense in which that term typically is used; that is, they
were not performing the function shown repeatedly on television assigned
to one republican and one democrat to sit with a counting team to observe
the count and register objections.  Perhaps they were "observing" the
proceedings in the same way that football fans observe football games, but
they were not performing the function of an observer."

Upon what is this assertion based?  The only reports I've seen discussing
this issue state that the protestors who were inside the building were
indeed the Republican observers who were upset because the board removed
itself and the ballots into a closed room.

Brad Clanton

-----Original Message-----
From: Michael MASINTER [mailto:masinter at NOVA.EDU]
Sent: Tuesday, November 28, 2000 1:45 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: The Fictional Mob


The truth, as always in Miami, is not so simple.  Michael Froomkin already
set out the timeline for media coverage; I am more interested in the
question of what actually happened.

White republicans have as much right to make their views known as black
democrats.  The first amendment has never required decorum.  Boistrous
behavior is not a riot.  Of the several hundred who came to the government
center, all but a handful did nothing more than what so many of us have
always understood to be our birthright.

The first amendment does permit reasonable time, place and manner
restraints on demonstrations.  The demonstrations by both democrats and
republicans in Broward and Palm Beach County took place on the sidewalks
adjacent to the locations in which votes were counted; they did not take
place inside a building.  The protest in Miami by well over one hundred
republican demonstraters last week took place within the confined space of
a building, not in the streets, in circumstances in which the police
presence was plainly insufficient to maintain order.  The three members of
the canvassing commission were effectively trapped.  At least one radio
station was urging listeners to go to the government center to stop the
recount.

The first amendment plainly does not forbid the exclusion of protesters
from government buildings during vote counting.  It is fair to ask why
what would be a universal precaution in the rest of the country was not
taken in Miami.  I wouldn't want Jesse Jackson and his merry band of
pranksters in the building either if my goal was to ensure the orderly
counting of ballots.

Brad mischaracterizes the demonstraters as observers.  They were not
observers in the sense in which that term typically is used; that is, they
were not performing the function shown repeatedly on television assigned
to one republican and one democrat to sit with a counting team to observe
the count and register objections.  Perhaps they were "observing" the
proceedings in the same way that football fans observe football games, but
they were not performing the function of an observer.

And then there is the Miami factor itself.  Miami is different.  Other
parts of the United States may have more violent crime, and their drug
dealers may routinely murder their competitors.  But Miami takes a back
seat to nobody in overtly *political* violence; when we call politics a
blood sport here, we are not using a metaphor. In this month's election,
the losing candidate for state attorney, Alberto Milian, grew up in Miami
at the side of his father Emilio, a local radio broadcaster whose legs
were blown off in retribution for his broadcast political views.  Though
the identity of the Emilio Milian bombers is one of the worst kept secrets
in Miami, nobody has ever been arrested.  Alberto learned; he later gained
fame as a prosecutor by punching a defense attorney, and was frequently
criticized by appellate courts for grossly improper jury argument.
Emilio Milian is just the best known victim of political violence, but he
is certainly not its worst; any number of murders have been linked to
local politics.

Political protests regularly turn violent in Miami; police stood by while
fans who attended a Los Van Van concert were pelted with rocks, eggs, and
offal.  More serious violence has been routine at the poltical rallies of
those who urge government to government relationships with Cuba.
Businesses which sponsor Cuban artists have been bombed and burned.
Folks here are skittish in ways that make no sense to the world north of
Lake Okeechobee.

Miami spanish language radio stations routinely test the limits of the
first amendment; whatever the line is between protected speech and
unlawful incitement, the radio stations sometimes cross it.  The first
amendment gives radio commentators the right to call their political
opponents communistas and hijos de putas, but it does not give them the
right to urge people to beat and kill them.

Does any of this turn what happened into a riot?  No; at least by my
standards, shoving, grabbing, kicking and a few off target punches, even
though violent acts, do not a riot make.  Does it matter that a republican
congressman is reported by the notorious left wing publication, the Wall
Street Journal, to have instructed those present to "shut it down?"  Does
it matter that they did?  I think those are fair questions; their answer
does not turn on common law definitions of the crime of riot.  It is clear
enough that David Leahy felt intimidated; he initially said so, retracting
that comment only later.  Whether legal consequences should attach to his
feelings is fair game for discussion.

The other two members of the canvassing board were local judges who have
never claimed to have been intimidated.  They both retained Armando
Gutierrez to "assist" their election campaign.  Conspiracy theorists will
remember Armando Gutierrez from the Elian Gonzales affair.  Gutierrez is
the godfather of Miami-Dade judicial elections.  He earns a tidy living
from judicial election candidates who wish to run for reelction without
opposition.  They pay him as much as 60K, largely to ensure that nobody
else who might hire him will run against them, believing, rightly or
wrongly, that if they don't hire him, somebody *certainly* will run
against them, and that it will cost them much more than that to win a
contested election.  They also pay his wife to run their political
advertising.  Miami-Dade County is the only Florida county in which
professional judicial election consultants can be found.

Three weeks ago, Gutierrez had scheduled an award banquet at which he and
the Miami relatives of Elian Gonzales were to honr Kendall Coffey for his
tireless pro bono efforts on their behalf to avoid Elian's repatriation to
Cuba.  The banquet was to take place shortly after the election. When the
election ended in a virtual tie, Kendall Coffey agreed to represent the
DNC in possible litigation over the counting of ballots.  Gutierrez
promptly denounced him as a traitor, canceled the award ceremony, and
added Coffey to the list of Castro sympathizers who are persona non grata
in his world.

I have no idea whether Gutierrez ever spoke to the two judges.  Even if he
did, I suppose he was just exercising his first amendment rights.  But I
am sure Oliver Stone can find a movie here.  Maybe he will call it
"Miami."


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Mon, 27 Nov 2000, Clanton, Brad wrote:

> Leslie Goldstein wrote:
>
> "Is anyone besides me upset at the hooligan-like tactics used in Miami to
> scare the board out of doing a manual recount of just the undercounted
> ballots?  Nothing in this whole contest has upset me as much as this
> apparent capitulation to mob rule."
>
> Andrew Koppelman wrote:
>
> "the Miami vote count was improperly halted as a result of
> Republican-party-orchestrated mob
> intimidation, and so should be continued."
>
> Putting aside the use of terms like "hooligan," "mob," and so forth in
these
> posts, I must say that I am quite surprised that allegations as phony as
> these -- allegations that have been repudiated by the Miami board itself
--
> are being repeated on this list serve.  According to press reports, what
> happened last Wednesday was that the Democrat canvassing board in Miami
> decided to take a number of ballots and move from one floor in the
building
> where the recount was being conducted  -- the floor where the media and
> Republican observers were -- to another floor where observers were not
> allowed.  That is what sparked the protest, and that is all it was, a
> protest.  There was no violence or intimidation, and that is why NO ONE
made
> those allegations for THREE DAYS.  Indeed, to the extent that anyone was
> criticized for that scene, it was the canvassing board that tried to
prevent
> its counting from being observed.  Indeed, the board immediately returned
to
> the room where the media and observers were located.
>
> Three days later Al Gore's campaign decided to spin that situation as one
> involving "violence" and "intimidation" and so forth, and dispatched Joe
> Lieberman to make those allegations.  All members of the Miami canvassing
> board promptly repudiated the allegations  and made clear that the protest
> had nothing whatsoever to do with their decision not to keep counting.
> Despite that fact, the Gore campaign has continued to repeat the baseless
> allegations.  But just repeating false allegations does not make them so.
>
> Brad Clanton
> Counsel
> House Judiciary Committee
> Constitution Subcommittee
> 362 Ford House Office Building
> Washington, D.C. 20515
> 202.226.7685 (phone)
> 202.225.3746 (fax)
>
>
>
> Brad Clanton
> Counsel
> House Judiciary Committee
> Constitution Subcommittee
> 362 Ford House Office Building
> Washington, D.C. 20515
> 202.226.7685 (phone)
> 202.225.3746 (fax)
>
>