News: Web Feature: Boo At Will

Ruling clears protesters, citing freedom of speech

Jan 18, 2001 at 2:06 pm
Jymi Bolden

Brian Cairns, left, and his brother Colin Cairns, far right, discuss strategy with attorney Lucian Bernard before being acquitted on tresspassing and disorderly conduct charges.

Giving a political speech in Music Hall is not a crime — and neither is booing if you disagree, according to a ruling in the trial of two men arrested during demonstrations against globalization of the economy. Two brothers charged with disrupting a Cincinnati Symphony Orchestra performance were acquitted Jan. 16.

During intermission at a Nov. 16 concert attended by delegates of the TransAtlantic Business Dialogue (TABD), Brian and Colin Cairns held up a banner saying, "End Corporate Rule." Officers charged them with trespassing and disorderly conduct.

At trial, Hamilton County Municipal Judge Ralph T. Winkler ruled a city prosecutor proved the charge of disorderly conduct against the Cairns. But he acquitted the brothers, saying their speech was protected by the Ohio and U.S. constitutions.

The Cairns, who came to Cincinnati from Oregon and Colorado, were the first of 52 arrests during the three-day demonstrations against TABD. During intermission in a program that featured Shostakovich — fittingly, an anti-Stalinist — the Cairns unfurled a sign about three feet long and 18 inches tall and told the crowd the world economic system is unfair to the poor.

Don Loos, a volunteer Music Hall usher, testified he quickly notified nearby police officers, who escorted the brothers from the hall without resistance, within a minute of the Cairns having left their seats.

"I don't know that anybody heard much of what they were saying," said Loos, a prosecution witness.

The crowd immediately began booing when the brothers raised their sign, and cheered when police escorted them away, Loos said. A season ticket-holder, testifying for the defense, also said he had trouble hearing what the Cairns were saying.

In contrast to their last Cincinnati visit, the Cairns wore ties and dress shirts to trial. Brian Cairns is a political-science student in Ft. Collins, Colo.; and Colin Cairns is a theater and sociology student in Portland, Oregon.

Brian Cairns said he came to Cincinnati to protest the increasing influence corporations have on government through organizations such as TABD — influence not available to average citizens. Upon arriving in Cincinnati, Brian Cairns said, he noticed police keeping protestors from the TABD meetings at the Omni Netherland Hotel, preventing him and others from delivering their message. So he bought tickets to the symphony and stood up during the intermission to be heard by as many people as possible.

Assistant City Prosecutor Gertrude Dixon argued the Cairns gave up their right to be at the concert when they stood up and yelled. But the Cairns' attorney, Lucian Bernard, argued the tickets negated the trespassing charge. Winkler agreed, dismissing the charge.

The disorderly-conduct case hung on whether the Cairns' speech "inconvenienced, annoyed, or alarmed" the crowd or was "coarse or grossly abusive," Bernard argued.

"Had they interrupted the performance of the symphony, this would be a slam dunk," he said.

Dixon argued all she needed to prove was the Cairns' speech was "unreasonable," as Loos and the two arresting officers said it was.

Because there was no evidence the Cairns continued after an officer asked them to stop, Winkler downgraded the disorderly-conduct charge from a fourth-degree misdemeanor to a minor misdemeanor, reducing the potential penalty from 30 days in jail and a $1,000 fine to a $100 fine with no jail time.

After hearing defense testimony from Brian Cairns and CSO season-ticket holder David Campbell, Winkler seemed to surprise everyone by raising the issue of free speech. Neither Bernard nor Dixon had broached the subject during the hour-long trial. After reading sections of the Ohio and U.S. constitutions, Winkler said even though Dixon proved the Cairns created an unreasonable disturbance, the symphony audience created as much of a disturbance by booing and cheering. Because the city law conflicts with the constitutions, it does not apply, Winkler said.

Colin Cairns said he was surprised Winkler acquitted him of disorderly conduct.

After the trial, Bernard said he had focused on details of the law, rather than making a constitutional argument.

"(Free speech) is a tough argument to win on," he said.

Bernard is also representing, pro bono, three other people arrested during protests against TABD.