The San Francisco-based U.S. Court of Appeals for the 9th Circuit has strangely shifting views on freedom of expression. It seems to depend on who expresses what.
In 1999, for example, the court declared "virtual" child pornography a "right." "The First Amendment," it said, "prohibits Congress from enacting a statute that makes criminal the generation of fictitious children engaged in imaginary but explicit sexual conduct."
Last October, however, the court took a far more cramped view of free speech. The murder conviction of Mathew Musladin must be thrown out, it ruled, because the victim's family sat in the front row of the trial, wearing buttons depicting nothing more than the victim's photograph.
This mute expression, the judges ruled, may have prejudiced the jury and thus violated Musladin's right to a fair trial. In October, the Supreme Court will hear an appeal.
One wonders how the 9th Circuit might have ruled had the victim's family worn "virtual" child pornography, instead of a photo of their slain loved one.
Musladin never denied shooting the dead man -- twice. He claimed it was self-defense, but the jury didn't buy it.
The circumstances are described in a brief that California Attorney General Bill Lockyer submitted to the Supreme Court.
Musladin and his wife, Pamela, were separated. She was living with her mother, her brother, Tom Studer (her new fiance) and Garrick, her 3-year-old son by Musladin. On May 13, 1994, Musladin had a scheduled visit with his son. That day, the local district attorney's office contacted him about not paying child support. He went to his wife's house with a pistol in his car, got his son, put him in the car and began arguing with his wife.
"Either you sign full custody of Garrick over to me right now, or I will blow both of your f------ heads off," he told her, according to the attorney general's brief. Then he shoved her to the ground.
Studer and her brother, Michael Albaugh, came to her assistance.
Musladin grabbed his gun and shot Studer in the back of the shoulder. When Studer tried to crawl under a truck in the garage, Musladin pursued him there and fired again. This time, the bullet ricocheted into Studer's skull, killing him.
Musladin claimed Studer was carrying a gun and Albaugh a machete, and that he fired to defend himself. The prosecutor presented testimony that Studer and Albaugh were unarmed.
The jury convicted Musladin of murder, and he was sentenced to 32 years to life.