Dan Frazier's correspondence with 'Uncle' Don Fanning following the Residential Picketing verdict Posted July 10, 2004

DAN FRAZIER'S COMMENTS ARE IN ALL CAPS.

Dan, Lisa: Please correct me if I'm wrong in any of the following.

An important thing to remember about Dan, Lisa and Bill's case is that it
was dismissed because there was inadequate evidence of harassment.  The
judge's decision did not state whether the sort of protest that they were
involved in was illegal if there had been more solid evidence, in his
opinion, of harassment, regardless of the sort of meeting (political), the
ad in the paper inviting the broader public, etc.

A brief discussion was held after the trial with defense's legal counsel
about possibly seeking a rewrite of state statutes to clarify the
"residential picketing" law with respect to issues related to political
free speech.  Defense counsel's assistant (his daughter, who he credited
with much of the research in the case) was interested in pursuing this.  I
feel that it would be in the best interest of the community (and all
communities) to pursue this even to the degree of assisting her with
expenses, etc.  (Dan, Lisa: please provide us a channel of communication
for doing this.)  Defense's assiasant is right on the brink of being
accepted by the State Bar and does not seem to be greatly encumbered yet
with other professional commitments.  (Correct me here if I'm wrong.)

ATTORNEY JOHN GLIEGE'S DAUGHTER STEPHANIE WAS INVOLVED IN RESEARCHING THE CONSTITUTIONALITY OF THE "RESIDENTIAL PICKETING" STATUTE AND SHE DID EXPRESS AN INTEREST IN POSSIBLY CONTRIBUTING SOME WORDING TO A PROPOSAL FOR A REVISED STATUTE. HOWEVER, I DON'T KNOW HOW SERIOUS SHE WAS ABOUT THIS, OR WHAT HER OTHER TIME COMMITMENTS MAY BE. I UNDERSTAND SHE IS IN BOSTON AT THE MOMENT AND I DO NOT HAVE A MEANS TO CONTACT HER DIRECTLY. IT MAY BE A FEW WEEKS BEFORE SHE IS ABLE TO ASSIST WITH THIS.

MEANWHILE, IT IS NOT TOO SOON FOR INDIVIDUALS TO CONTACT THEIR STATE REPRESENTATIVES ABOUT THIS STATUTE. I MAY DO SO MYSELF IN THE NEXT WEEK OR TWO. MY SUGGESTION IN A NUTSHELL IS THAT THE STATUTE SHOULD BE ABOLISHED. IT IS UNCONSTITUTIONAL ON ITS FACE. OTHER STATUTES ON THE BOOKS PERTAINING TO STALKING, HARASSMENT, DISORDERLY CONDUCT, DISTURBING THE PEACE, ETC.  SHOULD COVER ANY SITUATIONS THAT THIS STATUTE MAY APPLY TO. IF SUCH OTHER STATUTES DO NOT ALREADY EXIST, THEY SHOULD BE CREATED, AND THERE IS NO NEED TO OUTLAW ANY FORM OF PICKETING OR PROTESTING PER SE.

IF THE LAW CAN NOT BE ABOLISHED, IT SHOULD BE REWORDED TO ALLOW FOR RESIDENTIAL PICKETING AT THE HOMES OF THOSE HOLDING ELECTED PUBLIC OFFICE AND THOSE RUNNING FOR ELECTED PUBLIC OFFICE. IF THIS IS ASKING TOO MUCH, IT SHOULD AT A MINIMUM ALLOW FOR PROTESTS TO BE HELD IN RESIDENTIAL AREAS IN CONNECTION WITH PUBLIC OR POLITICAL MEETINGS THAT ARE TO BE HELD IN RESIDENTIAL AREAS.

 From my observations, actions in a protest that could be risky resulting
in another charge of "residential picketing":

-  Protesting to the residence rather than to the public at large.
(Location may have a lot to do with this. I'd guess that the "who" the
message addresses might also have an effect.)  (Prosecution attempted to
establish that protestors were visible from within the residence and were
located on streets in such a way that it was "obvious" that the protest was
directed at residents.)

-  Use of profane or inflammatory language or any suggestion of libelous
remarks (stick to facts).  (Prosecution attempted to establish that obscene
speech and gestures were used by the two women not located or charged.)

THE USE OF LANGUAGE AND GESTURES DID NOT SEEM CENTRAL TO THE TRIAL, EXCEPT TO THE EXTENT KRAMER ATTEMPTED TO CLAIM THAT A SIGN CALLING HIM "KROOKED" WAS OUTRIGHT HARASSMENT, A CLAIM THAT DID NOT APPEAR TO GAIN MUCH TRACTION. I THINK DON'S COMMENTS ABOVE ABOUT LANGUAGE MAY BE A BIT TOO SIMPLISTIC AND RESTRICTIVE. I SUGGEST THAT ANYONE CONTEMPLATING A PROTEST AND WANTING TO USE POTENTIALLY INFLAMMATORY OR LIBELOUS LANGUAGE SHOULD DO A LITTLE RESEARCH INTO LIBEL LAW. THE LAW IS INTERESTING AND ALLOWS FOR MORE FREEDOM OF EXPRESSION THAN MANY PEOPLE THINK, ESPECIALLY WHEN IT COMES TO PUBLIC FIGURES. I WROTE AN ESSAY ON THIS TOPIC FOR FLAGSTAFF TEA PARTY AND THE ESSAY MAY BE POSTED AT WWW.FLAGTEAPARTY.ORG. (MY INTERNETCONNECTION IS TEMPORARILY DOWN SO I AM UNABLE TO CHECK THIS.) THE FIRST AMENDMENT IS MEANT TO PROTECT FREEDOM OF SPEECH AND AS AN ACTIVIST I FEEL IT IS MY DUTY TO EXERCISE THIS FREEDOM TO THE FULL EXTENT ALLOWED UNDER THE LAW. USE IT OR LOSE IT. 

-  Noise that might disturb residents (prosecution attempted to establish
that protestors chants were loud enough to distress residents).

I DON'T RECALL THE PROSECUTION ATTEMPTING TO ESTABLISH THIS. I DO RECALL THE DEFENSE ESTABLISHING THAT NOISE HAD NOT BEEN NOTICEABLE TO THE KRAMER'S AT THEIR RESIDENCE.

-  Anything other than polite, peaceful protest.  Think about what could be
misconstrued as threatening (taking pictures of the residence and wearing
masks or disguises were used by the prosecution in this case).

THOUGH KRAMER DID MENTION THE PICTURE-TAKING AND THE MASKS TO SUPPORT HIS CLAIM OF HARASSMENT, THE TRIAL DID NOT ESTABLISH THAT SUCH ACTIONS MAY BE CONSIDERED EVIDENCE OF HARASSMENT.

There may be other things that I can't remember off the top of my
head.  I'd also guess that notifying both the party being protested and the
police (as often done in other protests) might smooth out things.

It seemed that the police detective's opinion, from his observations, as
related in the trial (and despite his relying on hearsay evidence) was that
harassment was intended, hearsay in itself that was objected to by defense
but (if I remember correctly) not thrown out of evidence by the
judge.  This may be because the court regards such a statement as more
valid from police than a statement by the public.

THE DETECTIVE BASICALLY SAID THAT HE ISSUED CITATIONS TO THE PROTESTERS BECAUSE HE BELIEVED THE STATUTE HAD BEEN VIOLATED. AMONG OTHER THINGS, HIS INVESTIGATION CONCLUDED THAT HARASSMENT HAD OCCURRED BECAUSE KRAMER CLAIMED HE FELT HE WAS HARASSED. THE DETECTIVE INDICATED THAT THE PHOTO OF THE PROTESTERS (PROVIDED BY THE PROTESTERS) WAS FURTHER EVIDENCE OF WHAT HAD OCCURRED. THE DETECTIVE DID NOT PROVIDE EVIDENCE THAT THE PROTESTERS HAD INTENDED TO HARASS. I WOULD ALSO ARGUE THAT THE DETECTIVE  DID NOT PROVIDE EVIDENCE THAT THE PROTESTERS HAD ACTUALLY HARASSED ANYONE.