Protesting, Civil Disobedience, And Criminal Law – Above the Law

NEW YORK, NY - (Photo by Stephanie Keith/Getty Images)

NEW YORK, NY – (Photo by Stephanie Keith/Getty Images)

No one has gained as much from Donald Trump’s presidency as the companies that make poster board. Here in the D.C. suburbs, there’s a serious shortage of the stuff. I have friends who drove to three or four office supply stores on inauguration day, only to come back empty handed. Even today my local CVS is sold out of poster board.

Many who aren’t used to making their voice heard outside of voting and, perhaps, putting sarcastic bumper stickers on their cars, are talking about advocacy, protests, and civil disobedience.

Non-lawyer friends have been asking me about the law as it applies to protesting. I think this stuff is kind of screamingly obvious, but, apparently, others don’t. So, here are my thoughts on the First Amendment, Civil Disobedience, and Criminal Law.

According to Vox, 4.2 million people took to the streets to protest Donald Trump on January 21 across the country. That’s a little less than 1.5 percent of the population.

At least in Washington, this was an event with a permit. No one was arrested. It is completely legal to go to a protest that has a permit; it’s protected by the First Amendment. While it may feel awkward the first time to waive a sign around and chant, at a certain point it’s fun. It’s like cheering at a sporting event but meaningful. But, the big takeaway, it’s not illegal.

That’s different than non-violent civil disobedience.

For example, some folks in the DisruptJ20 crowd tried to block security checkpoints so that people couldn’t get to the inauguration. In one case, some Black Lives Matter folks chained themselves together and succeeded in shutting down a checkpoint, keeping people from the inauguration.

A friend of mine who is full of passion suggested that the people who were arrested blocking the inauguration shouldn’t be prosecuted because they have a First Amendment defense. This is silly. If you do something illegal to make a political point, generally you have still done something illegal.

The key text here is Martin Luther King’s “Letter from a Birmingham Jail.” Note that it was written from a jail. That’s not because the folks in Birmingham were racists who wanted to undermine King — though surely they were. It’s because Martin Luther King committed a crime.

Part of the moral force of civil disobedience comes from breaking the law. As King said to the moderate white clergy who criticized his approach,

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern…. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

To some extent, this is a dodge. A law that says, say, “Don’t obstruct traffic” doesn’t seem terribly unjust.

That said, while, in general, there should be moral force to following the law, everyone is a law breaker at some point. Pretty much everyone speeds; many drink underage; and, if you believe the statistics on marijuana usage (even before state level legalization), lots of folks consume illegal drugs. Breaking the law in order to advance a cause you think is just looks easier to defend than breaking the law to avoid the minor convenience of being late.

So there’s generally no legal defense based on the First Amendment to acts of non-violent civil disobedience.

Lawyers have an interesting wrinkle. Among many other things, Trump has announced that he’d like to create a Muslim registry. Many people — lawyers included — have said that if there’s a registry, they’ll sign up, even though they are not Muslim. It’d be the registry equivalent of being a human shield.

One could see a Muslim registry sign up form being subject to 18 U.S.C. § 1001, which prohibits false statements to the government in many situations. So, if you make a false statement on a Muslim registry sign up form, you’re likely committing a felony.

Of course, lawyers are really supposed to follow the law. And they’re particularly not supposed to make false statements. The relevant D.C. Rule of Professional Conduct is 8.4(b):

It is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects

I volunteer in the D.C. disciplinary system and advise lawyers on ethics matters. I don’t want to opine here on whether a, say, Presbyterian lawyer falsely saying that she is Muslim on a registry as an act of protest or protection would violate Rule 8.4(b). But, to raise the issue, it does look like there’s some peril.

As King says, “[n]onviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”

Perhaps risking your law license meets that test. Perhaps not.

None of this is to say that civil disobedience — of whatever form — is bad. Done non-violently, it can bring real change. But part of its moral force comes from being illegal. If you want to go there, you’re in a noble and lengthy tradition. You may be showing the very best of citizenship in a democracy.

Just don’t expect to escape without a criminal record.

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