Three judges seemed unimpressed Wednesday with arguments that the First Amendment rights of a civil rights lawyer convicted of aiding a terrorist organization were violated when her prison sentence was quadrupled after she said she could serve the time "standing on my head."
"I'm not sure freedom of speech means absolute immunity from the consequences of what you have to say," said Judge Robert Sack.
The 2nd U.S. Circuit Court of Appeals panel that listened to oral arguments contained the same judges who ordered disbarred attorney Lynne Stewart resentenced in 2009 when they said they had "serious doubts" that her original sentence of 2 1/4 years was sufficient. The trial judge obliged, sending her away for 10 years as he noted comments she made after her first sentencing and concluded that she had committed perjury multiple times when she testified at her trial.
Stewart was convicted in February 2005 of conspiracy, providing material support to terrorists, defrauding the government and making false statements. After she was first sentenced in 2006, she said in an impromptu news conference in front of the Manhattan courthouse that two years in prison was nothing to look forward to, but she could "do that standing on my head."
Attorney Herald Fahringer, arguing for Stewart, cited the quote as he argued it violated the First Amendment to enhance her sentence because of her reaction to it.
Sack, though, said he wasn't concerned so much with that statement but rather with others she made in an interview with the Democracy Now network. She responded to a question about whether she regretted her conduct in the case by saying she had "no criminal intent whatsoever" and she'd like to think she would do things the same: "I would do it again. I might handle it a little differently, but I would do it again."
Sack said those comments "reflected a lack of remorse" and provided a "compelling argument" to support the longer prison sentence.
Fahringer responded that her statements reflected her belief that she would have continued to take unpopular clients and cannot be used to enhance her prison time because they were ambiguous and open for interpretation.
"If it is ambiguous, you have to give the speaker the benefit of the doubt because of the First Amendment," he said.
Judge Guido Calabresi said Stewart's statements could be read to mean what Fahringer was saying "or as a lack of remorse" but, either way, might be within the discretion of the sentencing judge to decide how they should be interpreted. To find otherwise, he added, would force the appeals court to require new sentences in many cases where judges rely on their judgment of statements or the demeanor of the defendant to decide how much prison time is justified.
The First Amendment argument was acknowledged by Calabresi when he asked Assistant U.S. Attorney Andrew S. Dember if a defendant can celebrate a lenient sentence without worrying about ramifications later.
"Can't somebody say: `I lucked out'?" he asked. "What if she said: `Boy, I was lucky to get the sentence this low. A lefty like me usually gets hit hard.'"
Dember said the sentencing judge doesn't just look at the statement but observes the defendant's demeanor and overall conduct. He noted that the judge had watched a videotape of Stewart outside court after the first sentencing.
Calabresi also asked Dember if the sentencing judge erred by failing to take into consideration that the government didn't prosecute two other lawyers who also represented Stewart's client, Sheik Omar Abdel-Rahman. The lawyers included former Attorney General Ramsey Clark.
"Ramsey Clark, a very distinguished lawyer, was not even charged," Calabresi said.
"The two other attorneys refused to do what she did. They had the opportunity to do it, discussed it, but didn't do it," Dember said.
Stewart was convicted of letting Abdel-Rahman communicate with a man who relayed messages to senior members of an Egyptian-based terrorist organization. Abdel-Rahman is serving a life sentence after he was convicted in 1995 in conspiracies to blow up New York City landmarks and assassinate former Egyptian President Hosni Mubarak.