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The officials in Cuyahoga County in Ohio and certainly Gov. Bob Taft should pay close attention to Montana Governor Brian Schweitzer.
Earlier this week, the Montana Governor signed pardons to posthumously vindicate 78 people who had been convicted of sedition during World War One.
Those people had been arrested and convicted of violating the state Sedition Act and then imprisoned, some for as long as 10 years, for having dared to criticize the government and its role in World War One.
In 1918, Montana passed the Sedition Act at the height of anti-German sentiment and it was the model for the federal Sedition Act of 1918. The Sedition Act made it a crime to publish "false, scandalous and malicious writing" against the government or its officials.
Although the U.S. Supreme Court never ruled on the constitutionality of the Sedition Act, there were mentions of the law in later Supreme Court opinions which indicated it was presumed unconstitutional. In the landmark free speech case of New York Times v. Sullivan, it was written that "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history".
The purpose of the Sedition Act of 1918 was to protect the government from any slander or criticism. Innocent people who expressed their opinions freely were jailed and fined. The law made it a federal crime to criticize the government or the Constitution. Any spoken or published form of writing, expressing negative opinions about the war effort or opinions about the draft which was then in effect led to the imprisonment of the author. It was even illegal to express one's opinions by letter to a friend or family member.
The Sedition Act was repealed in 1921 after the government recognized that people's rights had been infringed on and people were unable to express their opinions freely as guaranteed in the First Amendment to the Constitution.
The Governor said that the laws against sedition trampled the Bill of Rights to the U.S. Constitution. In pardoning the 78 people who had been convicted, Gov. Schweitzer said that "across this country, it was a time in which we had lost our minds. So today in Montana, we will attempt to make it right. In Montana, we will say to an entire generation of people, we are sorry. And we challenge the rest of the country to do the same".
Listen up, Cuyahoga County. And that means you, William Mason and Daniel Kasaris, prosecutors in the Elsebeth Baumgartner case. Baumgartner is charged with 34 counts of contempt for having dared to express her criticism of retired visiting judge Richard Markus in addition to over 30 felony counts of intimidation, retaliation and falsification for her allegations of public corruption in Cuyahoga County and for asking Markus to properly perform his judicial duties.
The charges against disbarred attorney, government whistleblower and blogger Baumgartner are the modern day equivalent of the Sedition Act and wholly unconstitutional. The statutes in question under which Baumgartner has been criminally charged for criticizing the government and lodging allegations of governmental wrongdoing are blatant violations of her First Amendment rights.
One of the most famous legal cases in history involved John Peter Zenger, a printer for the New York Weekly Journal and a German immigrant. In August, 1735, Zenger was charged with seditious libel.
The Journal accused the William Cosby, New York's governor, of conspiring to persecute the citizens of New York and tainting their judicial system. Cosby had altered the composition of the state Supreme Court, replacing one of his political adversaries with a political ally.
Cosby tried to imprison Zenger for seditious libel, much in the same manner that Ohio is trying to imprison Baumgartner. When three grand juries refused to indict Zenger, the Governor ordered the Attorney General to charge Zenger. He was accused of having printed false, scandalous and defamatory articles that allegedly impugned the Governor. As in the Baumgartner case, the court's jurisdiction was challenged and the impartiality of the judge was questioned. The Chief Justice of the New York State Supreme Court disbarred both attorneys in the case for having questioned the court's jurisdiction. Alexander Hamilton came forward to represent Zenger.
Hamilton argued that a published allegation of official misconduct does not amount to seditious libel unless it is proven false by the government. In the Zenger case, he was acquitted after Hamilton asserted truth as his defense. The case was also one of first cases in which jury nullification was exercised. The jury in the Zenger case ignored the seditious libel law and acquitted Zenger to prevent government oppression and to promote the interests of justice, thus establishing the foundation for freedom of the press in America.
During the ceremony in Montana this week, one relative of an imprisoned man who was pardoned said that "This is America. Having freedom of speech and saying what is on your mind doesn't make you're a criminal and it shouldn't".
That is applicable in Cuyahoga County too. How ironic it is that Elsebeth Baumgartner's heritage is German.
The burden of proof is on the Cuyahoga prosecutor and in order to prove that Baumgartner is guilty of falsification and retaliation, he has the same threshold as the prosecutor in the Peter Zenger case. He must prove beyond a reasonable doubt that the allegations that Elsebeth Baumgartner has made regarding judicial corruption and other governmental wrongdoing are false. Truth is Baumgartner's defense and for certain, under the First Amendment she is guaranteed the right to freedom of speech and freedom of the press in criticizing the government. She doesn't legally have to do a thing. The prosecutors must prove that her allegations are false.
Government overstepped its bounds in Montana 85 years ago---it has overstepped its bounds in northern Ohio, seriously encroaching on civil liberties and basic freedoms for Baumgartner having had the audacity to express her opinion or heaven forbid, criticize the judiciary.
The same thing that happened in the shadow of World War One in the name of protecting the government from dissidents is happening today with laws that have been passed with the design of enhancing security after the 9/11 attacks of 2001 of government overstepping its bounds and trampling individual rights. Baumgartner has been labeled a "paper terrorist" much the same as Peter Zenger was over 270 years ago.
Officials in northern Ohio are utilizing the court system and taxpayer money to harass, intimidate and retaliate against Elsebeth Baumgartner by levying charges against her that are unconstitutional but have yet to be legally tested.
Ohio officials should take judicial notice of what occurred in Montana this week and withdraw the charges against Baumgartner because if they don't, the Baumgartner case in Cuyahoga County could become to Ohio what the Peter Zenger case became to New York and the nation. 5-04-06
© 2006 North
Country Gazette
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