I am not a friend of Julius Henson. Most often, Mr. Henson and I have been political enemies. I have not seen him or spoken with him for several years. But I wish to express my view that what is happening to him is unjust and a threat to democracy.
I received one of his robocalls on election night in 2010, and I found it offensive and reprehensible. The calls were misleading, and were clearly intended to suggest that people need not go out and vote.
Nevertheless, it dangerous to our society, and particularly to minority communities, to begin criminalizing political statements, even those that are false and misleading.
I do not agree with Mr. Henson's politics and some of his tactics. But I feel compelled to defend his right to operate in the robust political arena.
It is easy to understand why many people regard Mr. Henson as arrogant and obnoxious. But, we do not need the First Amendment to protect pleasant people and popular views. The law exists to protect unpopular people who say political things that are offensive and even misleading.
The conviction in December of Paul Schurick for his involvement in the robocall raised concerns that I probably should have publicly addressed at the time. We should all be concerned about the dangers of criminalizing political communications. It would threaten our democracy to allow prosecutors to bring criminal charges because they believe that an official, a candidate, or a political organizer had made false statements. I know of no precedent, in any state, for Mr. Schurick's conviction, and I expect it to be reversed by the appeals court.
The Maryland law under which Mr. Schurick and Mr. Henson were prosecuted is dangerous, and I believe that it is unconstitutional. It is a threat to the NAACP and others who conduct voter registration and get out the vote campaigns. It is unconstitutional because it criminalizes statements made to urge people to vote or not to vote.
That law makes it a crime to "influence or attempt to influence a voter's decisions whether to go to the poll to cast a vote through the use of ... fraud."
Since 1968, I have conducted voter registration and get out the vote campaigns in this city. Sometimes, we have used pretty strong language to get our message across. This law creates the danger that people and organizations urging people to register and vote could be charged with a crime if some prosecutor believes that the organizers are making fraudulent statements.
In a voter registration campaign that I conducted in 2004, there appeared in the Daily Record a photograph of me wearing a T-shirt that said "Vote or Die." Under this law, if I were called before a grand jury and could not say who would die if they didn't vote, I could possibly be prosecuted for making a false statement to influence people's decisions as to whether to vote. Don't think this is farfetched. We are seeing in other states new laws being used to shut down voter registration efforts.
Even the right to stay home and the right to urge voters to say home must be protected. If in an election, all the candidates for an office are members of the Ku Klux Klan or otherwise objectionable, people should be free to make statements urging people to stay home and not vote. This law could lead to criminal charges, if the prosecutor believed that false accusations were being made about the candidates. That is why it is best to keep the criminal law and prosecutors out of the political discourse.
Finally, I believe that the sentence imposed against Mr. Henson was grossly excessive and inequitable. The jury seemed to understand the First Amendment and found Mr. Henson not guilty of most of the charges. To impose a sentence of 60 days in jail, 300 hours of community service, and three years of probation for failing to include an authority line on the call is absolutely excessive.
Furthermore, the disparity in the sentencing by comparison with his co-defendant is unacceptable. The man convicted of the least amount of charges was given the most severe sentence.
The injustice was compounded by refusing Mr. Henson bail pending appeal and ordering his immediate incarceration. The courts routinely permit persons convicted of serious and even violent offenses to remain free pending appeal. The only legitimate reasons to deny bail is that the person is an imminent threat to the community or there is a danger of flight, neither of which exist with Mr. Henson.
I know Judge Emanuel Brown to be an experienced and fair jurist. Perhaps the initial sentence pronouncement was intended to send a message. Now that that has been done , hopefully he will reconsider his orders, release Mr. Henson, and reduced the sentence.
Larry S. Gibson is a professor at the University of Maryland's Carey School of Law and has worked in political campaigns since 1968.