Judges dismiss Moral Monday Cases on First Amendment Grounds (Finally)

More than 900 people were arrested last year in what is known as the "Moral Monday" protests. Protesters would generally congregate outside the Legislative Building in Raleigh and then walk inside in a large group. Invariably, after being allowed in and allowed to assemble for a period of time, the head of the Capitol Police would demand that everyone leave within minutes. Those who remained on the second floor of the building after this demand were indiscriminately arrested and charged with various misdemeanors, including trespass, failure to disburse, and violation of building rules.

The Wake County District Attorney's Office offered to dismiss the charges in exchange for admissions of responsibility and an agreement to complete community service. Hundreds chose not to take the deal and have been going to trial. Over time, the State decided to dismiss the failure to disburse and violation of building rules charges, but continued to prosecute defendants for trespass.

Until recently, the outcome of these trespass trials was unpredictable, with many being found guilty and some being found not guilty. Under North Carolina law, those who are found guilty in district court (where a judge is both the judge and jury) can appeal their conviction and have a second trial in front of a jury of 12.

However, a recent United States Supreme Court case has changed the landscape and given the Moral Monday defendants a much greater chance of success. That case is McCullen v. Coakley, in which the Supreme Court reiterated that the government cannot create "buffer zones" banning people from certain public spaces when the government has available to it other options that are less restrictive of speech. In short, the Court held, "the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier."

Relying on this case, two judges have dismissed the charges against each of the defendants that have gone to trial in recent weeks. One judge issued a written order citing McCullen and explaining that "the General Assembly Police failed to explore less restrictive means to accomplish the government interest in dealing with the disturbance. As a result, the Defendants . . . , who were not creating or contributing to any disturbance . . . , were subject to an unconstitutional order to disperse . . . . The State has not shown that less restrictive measures would have failed to achieve the government's interests. . . . The charge of trespass . . . therefore constitutes an unconstitutional burden upon [the Defendants'] right to peacefully assemble and speak."

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This analysis appears correct. Free speech is a foundational principle of our system of government. This "freedom" cannot be so thin that a single government official can decide to silence an entire group of political speakers in a public space based on his own determination that they are no longer welcome.

Moreover, the North Carolina Constitution explicitly states, "The people have a right to assemble together to . . . to instruct their representatives, and to apply to the General Assembly for redress of grievances[.]" N.C. Const. Art. I, Sec. 12. Attempting to "instruct their representatives" and "apply to the General Assembly for redress of grievances" was the explicit purpose of the Moral Monday protests.

Prior to becoming "protesters," many of those arrested unsuccessfully attempted to contact their representatives through other means---phone calls, emails, letters, etc. After failing to be heard through these other channels, and with a legislature utilizing secret sessions to conduct serious business, these citizens went to the one place where they could be sure they would be heard---the General Assembly.

Their action is the very definition of engaged citizenship, and we cannot tolerate the police insulating our representatives from the voices and views of the citizens. If we did, only those who our representatives wished to hear from would be heard, and this would lead to a complete breakdown of our representational system of democracy.

Finally, while these rulings should spell defeat for the State's case against the Moral Monday protesters, it is important to remember that there are two sides to this debate. One the one hand, the freedom of speech and assembly and the right to instruct representatives are paramount constitutional protections that ensure that the government is responsive to the will of all the people and acts "solely for the good of the whole." N.C. Const. Art. I, Sec. 2. On the other hand, the legislature needs to be able to function without overwhelming disruption, and the police should not be vilified for their attempts to achieve this goal.

But nor should they be vindicated. Instead, the police need to craft a means of protecting against disruption of the legislative sessions that allows the public to communicate directly with legislators at the General Assembly, before, during and after sessions. This will be the next step of this process.

The government must craft regulations that are "narrowly tailored" to achieve the anti-disruption goal and give clear guidance to citizens about what they can and cannot do. These regulations will be subject to legal challenges, and through that process, we will arrive at a comprise of these two important interests that is far more protective of free speech than the method used during the Moral Monday protests.

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