Tusitala “Tiny” Toese is a commonly known name in the Portland Protest circle, a Proud Boy who’s had a penchant for getting into fights. In 2018, he faced three assault charges for events that happened during a protest. One charge was dropped almost immediately, and January of 2020 he reached a plea deal for a misdemeanor Assault 4 charge, with 2 years probation, community service and a special condition: No participation in mass demonstrations or protests in Multnomah County for the probation term.
Over the last few months, Tiny seemed to have difficulties maintaining the terms of his probation, based on reports from the probation office, and a warrant was put out for his arrest for repeated violations on August 11, 2020. Many who follow the protests will remember that he was present at the Proud Boy rally at the Justice Center on August 22nd. This did not go unnoticed, as the following Monday, the Department of Community Justice filed a new report, stating that he was known to reside in Vancouver and the current warrant could only be acted on in Oregon. A new warrant was issued, one that allowed him to be arrested in Washington. He was later arrested in the Vancouver area and was booked into Multnomah County Jail on September 1st, according to the inmate roster.
In comes a new character to the tale, Benjamin Barber, currently in custody in the Washington County jail for a charge of distributing ‘revenge porn’ (at the time of writing, jail records suggest he’s due for release in 3 weeks). During his time incarcerated, he’s filed a number of pro-se (representing himself) cases, using a variety of legal claims that were quickly denied by trial courts in attempts to move his case to federal court or claim unlawful imprisonment. At this time, it’s uncertain his relation to Tiny Toese (aside from one time attending the same protest), if any, or if he’s taken similar action for other inmates. But he attempted to file an amicus brief with the court on September 11th essentially claiming that the probation condition of not being allowed to attend mass demonstrations was an unlawful infringement of his rights. (It is worth noting as an aside that even before the August 22nd protest, probation reports filed with the court were requesting revocation of his probation and to be put in jail for other repeated violations). When reviewing the filing he made, it looks like the letter was written on August 4th (mail from jails takes a notoriously long time to be processed, so the fact that this was penned before a warrant was even issued is not surprising.
As an inmate, he likely doesn’t have access to a computer or typewriter, and has to do all filings by hand, and he’s gotten quite good at it (I’ve looked at literal hundreds of pages of filings he’s done in custody already), so in the interest of those who have difficulty reading handwriting, the document is transcribed below, and the original is available here.
In the Circuit Court of Oregon for Multnomah County
The State of Oregon
vs
Tusitala Toese
Case no {to be entered by the clerk}
Amicus Curiae in opposition to States Motion to Show Cause
Comes now, Benjamin Barber pro-se, to Move the Court to dismiss the probation violation against Tusitala Toese, for violating the condition of probation that he not attend any protests for 2 years.
Standing
Benjamin Barber alleges that he has standing, because he has a 1st Amendment right to receive the speech of the Defendant. see eg Stanley v. Georgia 394 U.S. 557, 564; and thus may assert the 1st Amendment rights of the Defendant see Virginia Board of Pharmacy v. Virginia Citizens Consumers Council Inc 425 U.S. 748, 757; and also has third party or prudential standing to assert the rights of third parties whether speakers or listeners similarly situated see Broadrick v. Oklahoma 413 U.S. 601, 612; Secretary of State of Maryland v. Joseph H Munson Co. 467 U.S. 947, 956-958.
Benjamin Barber attended a “free speech protest” with the defendant in 2017, and intends to attend other protests with the defendant in opposition to the Marxist and new Marxist phisophies such as critical theory adopted by the members of the governments of Portland and also Oregon.
Prior Restraints
The order entered by this court to provide as a condition of probation a requirement that the Defendant not attend any protests for 2 years is a prior restraint of speech. See eg Near v. Minnesota 283 U.S. 697, 711-713 “A prior restraint exists when the enjoyment of protected expression is contingent upon the approval of the government”
See also New York Times Co. v. United States 403 U.S. 713,714 “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against it’s Constitutional validity” Bantam Books, Inc v. Sullivan 372 U.S. 58,70 (1963) see also Near v. Minnesota 283 U.S. 697 (1931). The Government “thus bears a heavy burden of showing justification for the imposition of such a restraint.”
Prior restraints “must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order” Carrol v. President & Com’rs of Princess Anne 393 U.S. 175, 183-184.
The Amicii believes that the order by this court was meant to prevent potential violence between the Defendant and the group Antifa, which has been labeled by the US DoJ as a terrorist organization.
As the Court is likely aware, Antifa has been the organization leading over 90 days of violence in Portland, and has attacked journalists like Michael Strickland who engage in first Amendment rights, attempted to burn down the mayors home and the police union building, and attacks strangers unprovoked including a recent murder.
Antifa originated as a Marxis-Leninist group in Germany whose doctrines of revolutionary communism and revolutionary terror led to the take over of Germany by the Third Reich National Socialist Party, and is again engaging in political terrorism and civil rights violations.
Thus the order by the court amounts to a heckler’s veto of speech, hoping that by freezing the defendants speech that Antifa will not engage in disorderly conduct. see Beckerman v. City of Topelo, Mississippi 664 F.201 502, 509 “This provision falls as an impermissible prior restraint upon free speech because it is not narrowly drawn to relate to health, safety and welfare interests, but instead it sanctions the denial of the permit on the basis of the so called “heckler’s veto”. In authorizing the denial of permit because the licensor has determined the activity will provoke disorderly conduct in others, the state treats on thin ice. There is a host of Supreme Court cases dealing with the issue of the “hecklers veto”. In almost every instance it is not acceptable for the state to prevent a speaker from exercising his Constitutional rights because of the reaction to him by others.”
The conditions of probation are unenforceable see Perry v. Sindermann 408 U.S. 593, 597 (1972) “For at least a quarter-century, this Court has made clear that even though a person has no “right” to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his Constitutionally protected interests – especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his Constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly” Speiser v. Randall, 357 U.S. 513, 526. Such interference with Constitutional rights is impermissible.”
Thus since the punishment was unconstitutional, the Court lacked jurisdiction to enter the judgement with respect to that condition See eg Ex Parte Lange, 18 Wall 163, 176; Ex Parte Young 209 U.S. 123, 159-160; Landis v. City of Roseburg 243 Or. 44, 49; Matter of Providence Journal Co., 820 F.201 1342, 1347 (1st Cir 1986). A prior restraint of speech is extraordinarily grave, and each passing day constitutes a separate and cognizable infringement of first Amendment rights CBS Inc v. Davis 510 U.S. 1315, 1317, and is not thus subject to the Collateral bar rule State ex rel mix v. Newland 560 P.201 255, 260
Date 8-4-2020