The Middlesex District Attorney’s Office recently charged a man with violating chapter 266, section 69 of the Massachusetts General Laws. This law prohibits any individual from displaying the insignia of a society, association, or labor union if he is not a member of such an organization. In this case, the defendant allegedly attached two Massachusetts Police Association (MPA) stickers to his car. The defendant is not a member of the MPA and is not a police officer. When the Billerica Police Department caught wind of the situation, it charged the defendant with two counts of violating the law (which is a criminal misdemeanor) and the Middlesex District Attorney’s Office took over the prosecution in court. Newspaper articles about the defendant’s case can be viewed here and here.
Spring & Spring represented the defendant in Lowell District Court and filed a motion to dismiss, arguing that the statute violates the free speech clause of the First Amendment to the United States Constitution. A copy of the motion to dismiss can be read here. When the defendant allegedly attached the stickers to his car, he was engaging in constitutionally-protected speech. The government may not criminalize speech, regardless of whether it agrees with the speech’s content.
The motion to dismiss was scheduled for a hearing last Friday morning and the judge was prepared to hear the motion. Rather than defend the constitutionally of the law, the Middlesex District Attorney’s Office dismissed the case and said it would seek a new complaint charging the defendant with different crimes (despite the fact that section 69 is perfectly applicable to the conduct in which the defendant allegedly engaged). Essentially, the Middlesex District Attorney’s Office dismissed the case in order to avoid having to either concede the law was unconstitutional or to defend the blatantly unconstitutional law.
The consequence of the Middlesex District Attorney’s Office’s refusal to defend the statute is that the judge was deprived the opportunity to consider whether the law violates the constitution. Therefore, the law remains on the books and can be charged against other defendants in the future.
The Middlesex District Attorney’s Office charged the defendant with a crime based on an unconstitutional law. In light of the defendant’s challenge to the law, the Middlesex District Attorney had an obligation to either concede the law was unconstitutional or to offer a legal defense of it in court. By ducking the issue and refusing to take a position, the citizens of Middlesex County lost on Friday.
A Boston Globe article, which can be viewed here, outlined the recent struggles of the Middlesex District Attorney’s Office. The office’s embarrassing refusal to defend the constitutionality of a law it had used to charge the defendant with a crime is the latest black mark on the reputation of an office that has seen far better days.