Eroding Political Speech in the Name of Stopping Right-Wing Extremism

Judge Tanya Chutkan says she wants consequences for “a violent mob attempting to disrupt the peaceful transition of power,” but all her sentencing of Matthew Mazzocco does is promote the repression of political dissent.

Photograph of Larry Rubin by Lloyd Wolf: http://lloydwolfphoto.blogspot.com/2019/01/operation-understanding-dc-class-25.html?m=0

When I saw the reasoning of Judge Tanya Chutkan for going against the prosecution’s sentencing recommendation and sentencing Matthew Mazzocco to 45 days in prison, particularly the justification of protecting “the peaceful transition of power,” I am reminded of what Martin Luther King Jr. once said in his book “Stride Toward Freedom” regarding peace: “True peace is not merely the absence of tension; it is the presence of justice.” Judge Chutkan surely would argue that she is seeking justice through the incarceration of Mazzocco, but whether she is conscious of it or not, I believe the actual intent is to suppress the political tensions that have built up around this country over the last two decades.

While I long ago outed myself as a skeptic of incarceration itself, one does not need to be a prison abolitionist to question this decision on the most basic grounds of due process, human rights, and proportionality. Mr. Mazzocco did not plead guilty to sedition. Mr. Mazzocco did not plead guilty to assault, conspiracy, or even vandalism. In fact, Mr. Mazzocco was never even charged with these things — the sole charges pressed against him by the Department of Justice were (1) “Knowingly Entering or Remaining in any Restricted Building or Grounds Without Lawful Authority” and (2) “Violent Entry and Disorederly Conduct on Capitol Grounds.” As a piece in Politco points out, these are the kind of laws that have been used to prosecute Black Lives Matter protesters recently and all sorts of social justice movements since their enactment.

But Mr. Mazzocco has not been and will not be found guilty of even these already minor and politically fraught charges. Instead, he plead guilty to a criminal charge the name of which would be comedic if it were not so disturbing in practice: “Parading, Demonstrating, or Picketing in a Capitol Building.” This charge too has all sorts of implications for social justice movements on the polar opposite end of the political spectrum — I would presume that none of us would want Representative Alexandria Ocasio-Cortez to be charged with this “crime” for joining the Sunrise protest of Nancy Pelosi, let alone sentenced to 45 days for committing it.

But there is an even more fundamental and disturbing issue at the heart of this sentencing, which is judges using their discretion to incarcerate people based on political disagreement rather than factual findings in a guilty plea or jury verdict. Judge Chutkan’s sentencing is based on characterizations of the January 6 protest that have never been proven in a court of law, let alone proven as to someone like Mr. Mazzocco. What did Mr. Mazzocco actually do at this protest? According to the Statement of Offense accompanying his plea deal:

That’s it. That’s all he did according to the Department of Justice. He entered the Capitol, walked around, told people not to steal or vandalize, and took a selfie. And this was transformed by Judge Chutkan, without basis, into “participating in an attempted violent overthrow of the government.” Characterizing non-violent protest as attempted violent overthrow has obvious parallels to movements for justice in both modern times and throughout history. Laura Ingraham of Fox News said the protests about the murder of George Floyd were an attempt to overthrow the government. And for those who thought my quote of Martin Luther King Jr. was inappropriate or overblown, SNCC field secretary Larry Rubin was charged with attempting to “overthrow the government of the state of Mississippi.”

None of this piece is a defense or even speculation on whether other people at the January 6 protest could be described, colloquially or legally, as attempting to overthrow the government. But Mr. Mazzocco clearly was not. The crime he plead guilty to is dubious in and of itself on freedom of political speech grounds, even more so when read in conjunction with his Statement of Offense.

It is long past time for the Left to speak out against this use of incarceration to repress political speech. In the case of someone like Mr. Mazzocco, it is no different than the politically charged and frivolous cases made against the Left. The precedents it sets, most disturbingly to the power of judges to use their discretion to incarcerate without any basis in fact, will almost certainly impact the Left, so for self-preservation alone we must speak out against this kind of use of incarceration.

The U.S. Left sometimes errs in believing that someone like Mr. Mazzocco is part of the power structure that oppresses us. In some ways he was and continues to be, as any racist, no matter how casual, perpetuates white supremacy, and so on. But the overarching interest of capitalism is about creating the peaceful “absence of tension” criticized by Martin Luther King Jr. It does not want to eliminate racism — it just wants to stop racists like Mr. Mazzocco from disrupting the status quo. It is not doing this to prevent “violent overthrow” — it wants people of all political stripes to resign themselves to the status quo rather than dissent or protest in any way. No justice was served by sentencing Mr. Mazzocco to 45 days in prison — only the interests of those in power were served.

Feminist socialist writer fighting for econ justice. Views do not represent my firm, DSA, or my cats, who are sadly both ultra leftists.