In a curious case, two “racial justice” protesters have been indicted in Cuyahoga County, Ohio, on felony assault charges. The facts are in substantial dispute, whether a hostess at a restaurant targeted for its “perceived racist and sexist behavior” suffered serious bodily injury.
Jacqueline Boyd is the director of operations at TownHall and the first cousin of owner Bobby George. She was working as a hostess at the back entrance on July 12 and alleged that she suffered permanent hearing loss due to the proximity of the megaphones throughout the event. Indeed, the weaponization of the megaphones is the basis for the felony charges. Local civil liberties attorneys and first amendment advocates view the indictments as extreme.
It’s unclear whether the protesters’ megaphones were in her ear or she was just one of many in the vicinity of the amplified sound, the only one claiming injury. It’s also unclear whether the injury is legit at all, as she’s not receiving medical treatment or using a hearing aid, but “natural remedies like yoga.” And there is clearly motive for the hostess, cousin of the restaurant owner under attack, to accuse in retaliation.
But these factual issues are what trials sort out. The attorney for the two protesters, Peter Pattakos, took a different approach.
“My clients, their families, and their attorneys are shocked that the Cuyahoga County Prosecutor’s office would pursue any charges, let alone felony charges, here. Not only is the theory of this prosecution constitutionally suspect and ridiculous on its face – that these civil-rights protesters who were engaged in fundamental First Amendment-protected activity committed felony assault by soundwaves emitted from standard-issue megaphones – but the dishonesty and retaliatory motive of the so-called victim here could hardly be clearer from the evidence, including hours of video footage from various sources, that [the prosecutor’s] office has apparently failed to review.”
While the idea of assault by soundwaves is novel, does it implicate First Amendment concerns?
Cuyahoga County Prosecutor Michael O’Malley told Scene that in his understanding, Jaqueline Boyd had indeed suffered permanent hearing loss, which constitutes serious bodily harm under Ohio law. Hence the felony. He said that a grand jury “composed of citizens of this county” decided that a criminal indictment was warranted, but said that the defendants would have an opportunity to present their case before a judge or jury, and he had every expectation that justice would prevail.
The “ham sandwich” argument is silly, but if the use of megaphones purchased from Amazon, apparently noted for the sake of showing that these weren’t some sort of super-duper weaponized megaphones from the Special Ops Shop, caused the hearing loss, which the prosecutor claims to be true, then the level of injury is severe enough to warrant felony charges.
Andy Geronimo, director of the Case Western Reserve University First Amendment Law Clinic,… said the indictments were very troubling to him.
“From all appearances, this is a felony prosecution of speech,” he wrote in an emailed statement to Scene. “While there have been First Amendment challenges to restrictions on the time, place, and manner of the use of amplified sound, I’m not aware of any criminal prosecution, (apart from this one), where the claimed harm is hearing damage from a megaphone or other amplification system. The Supreme Court has repeatedly held that the First Amendment’s guarantee of freedom of speech does not change because the speaker used technology to convey their message, and I hope that the prosecutor’s office considers the constitutional implications involved in criminalizing acts of free expression.”
This is certainly a novel prosecution theory, and it’s correct that the use of technology to “convey their message” doesn’t change the speakers’ free speech rights, but is the message at issue here? From the defense perspective, this is a sham complaint, a false claim of harm ginned up to retaliate against protesters who are saying bad things about the owners of some restaurants.
The defense is that this is one big sham to silence the protesters’ message. The prosecution’s contention is that the message is irrelevant; the crime is amplifying sound as the weapon of harming another person.
Despite the fact that the defense’s contentions aren’t a matter of chanting for the cause, Pattakos’ arguments smell more like the sort of vapid screams from outraged activists on twitter than a rational and effective legal position.
“I have every reason to believe that your office has been badly misled as to the basis for this indictment,” Pattakos wrote, attaching a related brief which he said would illustrate the “incredibly outrageous” nature of the charges. “I expect that when you read it you will agree, and that your office will immediately dismiss this case.”
When isn’t it a winner to call the charges “incredibly outrageous” and expect dismissal?
The brief, filed after Boyd sought a restraining order against Douglas and Yahner in the wake of the July 12 demonstration, advanced the position that Jacqueline Boyd and Bobby George were seeking to leverage their resources to “pervert and subvert clearly established law to serve their own personal interest.”
The defense’s contention, that this is a prosecution brought to silence protests and prevent them from highlighting the restaurant owner’s racist and sexist behavior (which remains a mystery from the article), may be true. But putative victims seeking a restraining order is utterly commonplace, and it’s supposed to serve their “own personal interest” by preventing them from being the victim of further criminal conduct. It may be perverted, but it’s hardly unusual.
And why the defense believed this was worthy of inclusion in its brief is unclear:
The September brief included a quote on that topic from the testimony of Chris Piazza, another With Peace We Protest member and Cleveland-Marshall Law student.
“These protesters are supposed to be disruptive,” he said. “They’re supposed to be offensive. They’re supposed to be bothersome. If these protests were just us sitting at home behind our keyboards, nothing would ever happen. We need to be out there. We need to be loud and obnoxious, just to get people’s attention. That’s the only way we’re ever going to affect any change.”
Civil disobedience is certainly an effective way to garner attention, but it’s the antithesis of getting a free pass on criminal prosecution. One would think a law student like Piazza, and a lawyer like Patakkos, would grasp that the point is that the cause is worth getting convicted, not a defense for the crime.
In the meantime, the novel legal question, whether an assault can be committed by soundwaves, has been subsumed by the empty noise of hyperbolic outrage, ironic given that it was amplified noise, regardless of message, at issue in this prosecution. If the facts fail to meet the elements of the offense, then the time, place and manner to dispute them is at trial.
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It is easy enough to determine if the megaphone in question was capable of causing hearing loss. All it takes is a sound level meter. The OSHA noise exposure guidelines allow 4 hours of exposure at 95 dBA (slow response), which is loud enough that you cannot easily hold a conversation. At 100 dBA, the exposure limit is 2 hours of continuous exposure. That’s a lot of shouting. If Ms Boyd suffered hearing loss , then it is highly likely the person holding the megaphone suffered hearing loss.
That’s exactly the sort of expert evidence one presents at trial to disprove the allegations. That’s how factual disputes get resolved.
Unless the prosecution has some baseline evidence that the complainant had no hearing loss before the event, it’s going to be hard to pin it on the megaphones.
Complaining witnesses’ testimony alone have put a lot of folks in prison.
This is where your “science” approach is worthwhile, but needs to better appreciate it’s limits. We don’t know the details, like did the defendants, with bullhorns turned up to full blast in a space already at high dB from screaming, scream at the top of their lungs with the bullhorn millimeters away from the putative victim’s ear? Does that fundamentally change the equation? Do the OSHA guidelines have anything to do with what happened here?
I dunno, but I would want to before assuming facts not in evidence and drawing any false conclusions.
Did I amuse you, GD?
https://www.youtube.com/watch?v=OEfUc87_Ae0
I always new there would come a time to introduce the official SJ back pages drum roll…
You look good with your hair combed.
Not at all.
It didn’t even give me that, ‘here we go again, another grumpy old dude bitching about stupid people’ eye roll.
Actually, you raised some very good questions I was pondering myself after reading the post, as I own a nice old Bogen megaphone, and I know for a fact that, with fresh batteries, cranked up to 10, a foot away from your ear, it could definitely do permanent damage. ( Without damaging the user at all, Brian U. )
PS; Sarge, I am sorry about that slam yesterday. I’m grumpy and old too. And, to be honest, I have laughed more than once at one of your idiot smack-downs. Hope you can accept my apology. GD.
Not so easy.
Both NIOSH und OSHA have published standards in the US.
NIOSH sets the floor at 82dBA for 16 hours exposure.
For each 3dBA increase the exposure time is cut in half.
OSHA uses a floor of 85 dBA at 16 hours with a 5dBA halving decrement.
At 100 dBA this translates to either 15 minutes or 2 hours allowable exposure by the competing standards.
At 115 dBA the respective max allowed exposure times are 28 seconds and 15 minutes.
I found one company out of Canada that rated their megaphones in dBA at 6 feet.
The dBA ratings on those products ranged from 110 to 118 dBA for units that appeared similar to those I’ve seen carried at other protests.
Distance to the source has a large effect on sound power. As a first approximation, a doubling or reducing the distance by half will reduce or increases the sound power by about 6 dBA. So the 118 dBA megaphone becomes about 112 dBA at 12 feet or 124 dBA at 3 feet.
Your last point is pretty silly. Sound power is not equal on both sides of a bullhorn.
I have no idea about the present case, but have seen plenty of examples of protesters putting a bullhorn inches away from someone’s face. This is very likely to generate sound levels that are above the threshold of pain and could cause hearing impairment based upon current standards for occupational safety.
The article links the protestors’ video. The bullhorning was about 1 person length away, so ~5-6 feet.
The video shows what it shows, but we don’t know what else happened that it doesn’t show. Don’t assume that you saw everything.
Of the “standard-issue” megaphones from Amazon the one depicted in the video does appear to be one of the more powerful type.
A bit of new information.
“According to a police report obtained by BuzzFeed News, Yahner and Douglas were observed using megaphones to “blast the police sounding siren” toward the restaurant during the July 12 demonstration. The detective who wrote the report said he saw Yahner “pointing her megaphone in the direction of the victim and patio activating the blaring siren, over and over again.””
If the facts fail to meet the elements of the offense, then the time, place and manner to dispute them is at trial.
ICWYDT.
If this works I’d like to file a civil assault by sound waves suit against Black Sabbath, Judas Priest, Slayer, and Black Label Society. My ears have been ringing like a bell since Ozzfest 2004.
Nobody forced you to be a headbanger.
…did you really just attack his responsive brief to a request for a restraining order as if it was his defense for the criminal charges? Did you really write an entire post attacking the lawyer for not keeping the issues straight WHILE you misunderstood what was going on? What, was it too hard to just read his brief? Or is it that any time BLM shows up you need to find something to attack besides their message because you just can’t handle anything the left does?
Since you asked, no.
Reading is hard, Jay. Especially when you choose to keep your head up your ass.
“I have every reason to believe that your office has been badly misled as to the basis for this indictment,” Pattakos wrote, attaching a related brief which he said would illustrate the “incredibly outrageous” nature of the charges. “I expect that when you read it you will agree, and that your office will immediately dismiss this case.”
I certainly understand criticizing the execution of how the defense is trying to get the prosecutor to dismiss this case, but I am surprised that you would argue that they shouldn’t, saying these are issues for trial. It is a very significant restraint on someone’s liberty to have a pending felony charge against them, and it might take a long time to get this case to trial. Then there’s the uncertainty of any trial.
No one can say what any particular jury would do with any set of facts, no matter how much we might think them unreasonable. As you say, complaining witness testimony alone has put a lot of people in jail.
But the prosecutor does have an independent duty to not bring a case if there is no evidence of intent to harm, threaten, or frighten. The defense SHOULD be trying to getting the prosecution to drop this case. And they might reasonably believe political pressure to be the best way to accomplish this.
None of that means they did a good job of it here or not. I suppose the only way to know is if it gets dismissed.
The question isn’t whether they should move to dismiss, but whether they’ve ignored serious legal arguments to go for hyperbolic bullshit like screaming “OUTRAGEOUS” at the top of your lungs and expecting that to accomplish anything. It’s not enough be a lawyer, but you have to be a minimally competent lawyer.
If you’re that deft, who has this pending over their heads, do you want competent representation or ignorant woke bullshit doomed to fail? This case isn’t going to be won by going viral among the idiocracy on twitter but in court using sound legal arguments.
“… if there is no evidence of intent to harm, threaten, or frighten.”
You confuse motive and intent. Their motive may have been to pursue their cause, but the actions were clearly intentional.
I guess we could pull out the jury instructions for that jurisdiction. But usually elements include significant injury (usually requiring some sort of hospitalization, etc), voluntarily, not on mistake or accident (i,e, intent). I am just saying that the prosecutor has an independent responsibility (always honored in the breach) to determine whether the elements are met.
I keep wondering about what set the snowflakes off…“perceived racist and sexist behavior”
Let’s see…how about waitresses with low cut tops and a white chef serving something ‘inappropriate’…?
If they only tell you it was bad, it had to be bad. If they told you what it was, you might come to the wrong conclusion.
It’s not an entirely novel question. There have been a few lawsuits over injuries caused by police using LRAD sonic weapons to disperse protesters. LRAD’s are large loudspeakers that can, in addition to working like normal loudspeakers, also emit an ear splitting noise for ‘area denial.’ A couple of years ago, some NYPD cops lost QI against excessive force claims over deafness caused by the use of LRAD’s.
There is also the Kurt Eichanwald epilepsy flashing gif case that’s currently in progress. The guy caught a felony charge on the theory that you can, at least in the case of epilepsy, visually assault and batter someone with a gif.