Getting arrested for laughing may sound funny, but it's no joke

The Justice Department is prosecuting a woman who laughed during a Senate hearing to confirm Jeff Sessions as attorney general. I can sympathize with her somewhat absurd plight, because I was once tossed out of the press box in the Supreme Court for laughing at the wrong time.

Desiree Fairooz, a librarian in Arlington, Virginia, and a Code Pink activist, guffawed when Sen. Richard C. Shelby, R-Alabama, asserted that Sessions' record for "treating all Americans equally under the law is clear and well-documented." She was speedily arrested by a U.S. Capitol policewoman. Justice Department lawyers reportedly charged Fairooz with "disorderly and disruptive conduct" intended to "impede, disrupt, and disturb the orderly conduct" of congressional proceedings.

According to Huffington Post, laughter occurred at other times during the hearing — especially when Sessions made a joke about his marriage. But laughing with the nominee did not pose a grave threat to the dignity of congressional proceedings.

It might seem like a surprise that the Justice Department is prosecuting Fairooz; perhaps the career lawyers in the office of the U.S. attorney for the District of Columbia who are pursuing the case will win the gratitude of their new boss, but it's an unusual one. The case is being heard by the chief judge of the D.C. Superior Court.

It isn't the first time federal cops have attempted to enforce the difference between licit and illicit laughter, though, and unfortunately, it might not be the last. Laughing got me tossed out of the press box at the Supreme Court in March 1995. I was on assignment for Playboy, covering arguments in a case involving an Arkansas woman who had sold a small amount of illegal drugs to a government informant and was later the target of a no-knock police raid. Then, too, some laughter was OK, and some wasn't: When then-Chief Justice William Rehnquist mocked one lawyer's assertion, everyone in the house responded with a polite chuckle.

The Clinton administration's lawyers were asserting that no-knock drug raids were presumptively justified in houses that had flush toilets — since the slightest delay in barging in could allow residents to flush away small amounts of drugs. (That would, of course, mean no-knock raids were preemptively justified in more than 99 percent of households in the nation.) Justice Department lawyer Michael Dreeben conceded that a forced entry would not be justified if police knew "that all the drugs in question are stored in relatively indestructible crates."

John Wesley Hall, the lawyer representing the defendant, retorted that, according to that logic, "the more drugs you've got, the more right you have to an announcement" before a police search.

I thought that was hilarious. Alas, my boisterous laugh proved to be a solo performance. All the justices — and almost everybody else in the courtroom — turned and stared in my direction.

A few minutes later, a Supreme Court police officer tapped me on the shoulder and notified me that I would have to move to a rear alcove — out of sight. As The Washington Post's Al Kamen reported the next day, officials said I had violated an obscure Supreme Court rule that requires reporters sitting in the front of the press section to follow the same dress code as members of the Supreme Court bar do. By wearing a Lord & Taylor dress shirt, but not a coat and tie, I ran afoul of the rules, but it was my illicit laugh that drew the attention of anyone in a position to enforce the provision. ("Maybe he should try Brooks Brothers," Kamen joked in his column.) In my situation, at least, there were no criminal charges filed.

While my ejection, and Fairooz's case, may seem funny, it's actually a dangerous precedent to permit the Justice Department to prosecute people who laugh during official proceedings. Will applause and raucous cheering be the only legally permitted noises that citizens can make while listening to politicians? Should we imitate repressive governments, such as Thailand's, and make a criminal offense of lese majeste — insulting the ruler?

The federal government nowadays is generating so many absurdities that even cynics cannot keep track. We all need to maintain our humor to preserve our sanity — and our freedom. As H.L. Mencken aptly observed, "One horselaugh is worth ten thousand syllogisms."

James Bovard is an investigative journalist and author of 10 books, including "Attention Deficit Democracy" and "Lost Rights: The Destruction of American Liberty."

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