I am a Quaker lawyer finding myself in the middle of the legal defense of Quakers arrested for failing to disperse from an unlawful assembly at the North Carolina General Assembly during the “Moral Monday” protests this summer. I have been inspired, moved, and challenged by Moral Monday protesters. I am now reflecting on my Quaker ancestors and their “unlawful assemblies.” Looking at these current cases through the lens of my Quaker history has been an interesting experiment, and has enriched my understanding on the radical power of gathering together for justice.
Let me begin by reviewing some early Quaker prosecutions, focus in on William Penn’s trial, and then look at the present day Moral Monday trials through this hastily crafted pseudo-historical lens. I hope to unearth some spiritual and legal lessons on civil liberties, community lawyering for social change, and the radical act of gathering together.
A. Early Quaker Criminals
Quakerism sprouted at a time when the idea of natural rights to assemble, speak, and worship freely was in its infancy. The newly centralized State and its religious branch, the Established Church, were powerful forces aimed at eradicating these religious awakenings and radical political gatherings. For Quakers, religious and political persecution galvanized what started as a struggle for survival and a costly group witness into an organized religious and political movement successfully winning won its freedom. This story of small group witness transforming into a broader movement for freedom had much broader social implications, and as we shall explore, there are parallels between those early years and some issues my clients are facing now.
If the early history of Quakerism in seventeenth century England is to be our guide, every good Quaker should have a criminal record. Our founding Friend, George Fox, was incarcerated in stench filled 17th century prisons in Carlisle, Derby, Lancaster, Launceston, Leicester, London, Scarborough, and Worcester. (Ingle, 98-100, 66-69, 190-91, 134-41, 120-21, 220-21, 246-48) Likewise, our early Quaker leader, William Penn, was a recidivist. He began his criminal career in the Tower of London in 1668 for his pamphlet, The Sandy Foundation Shaken. (Wedeking, 36-37; Peare, 80-82) Along with other Quakers, Penn was arrested and served hard time for openly challenging religious laws restricting the ability of Quakers to freely assemble, speak, and pray together. (Peare, 109-110)
1. Legal Framework for the Prosecution of Quakers
The true intensity of the fire of early Quakers can only be understood in the context of the layers of persecution which failed to extinguish their flame. Their burning desire for a more free and primitive form of Christianity brought them into direct conflict with the State and Established Church. There were multiple laws the State and Established Church used to prosecute Quakers. The Conventicle Acts was the primary vehicle of prosecution. (Horle, 46) A “conventicle” is a small, unofficial and un-officiated meeting of laypeople to discuss religious issues. The original Elizabethan Conventicle Act (1581) was supplemented by two additional Conventicle Acts and a “Quaker Act” (1662) (Horle, 46) On the whole these acts prohibited religious gatherings of more than five people over the age of sixteen and created summary proceedings to expedite conviction. (Horle, 46)
The Conventicle Acts were a part of the Clarendon Code which was enacted to re-establish the dominance of the Established Church following the Puritan revolution of the 1650s. The Clarendon Code included the Corporation Act (1661) requiring oaths of allegiance and excluding those outside the Established Church from service in municipal bodies, the Act of Uniformity (1662) expelling 2000 Puritan Clergy from livings in the Established Church, and the Five Mile Act (1665) prohibiting dissenting schoolmasters and clergy from coming within five miles of towns. (Russell, 91-92; Horle, 49-51) In addition, the Quaker Act (1662) imposed heavy fines, incarceration and forfeiture of property, upon persons assembling together unlawfully, maintaining grounds for unlawful assemblies, and refusing to take oaths. (Russell, 92; Horle 50) Later versions of the Conventicle Act created summary proceedings, without a jury, empowered the militia to prevent and suppress meetings, and rewarded informants. (Horle, 47)
Quakers were arrested, incarcerated, and forfeited property for gathering in unlawful religious assemblies, speaking about unauthorized religious ideas in public, and refusing to take oaths. In addition to violating the Conventicle acts, Quakers could be prosecuted for the common law violation of inciting a riot involving three more people. (Horle, 47) Traveling Quakers could be prosecuted in violation of vagrancy laws “on the pretext that they were able bodied persons begging for food and money.” (Horle 47; Russell, 61) The Vagrancy Act provided that “rogues, vagabonds and sturdy beggars” should be apprehended and whipped and sent home. (Russell; 61-62) In 1657 this act was extended to all persons wondering or travelling about without sufficient cause. (Russell, 62) Quakers could be prosecuted for failure to observe the Lord’s Day, and could be fined for failure to go attend the Established Church. (Horle, 48)
When Quakers entered church services and debated the clergy they were prosecuted for disturbing and interfering with religious services. (Horle, 48; Russell, 60) The Lord’s Day Act (1657) extended the liability to interfering with a minister going or coming from church. (Horle, 48) “Ironically, probably the only time that Quakers attended the Established Church was to disrupt it.” (Horle, 48) Quakers were prosecuted for failure to attend Church and to pay taxes or tithes to the Established Church. (Horle, 53; Russell, 60-62)
Quakers’ refusal to take oaths led to all kinds of trouble. (Horle, 49; Russell, 61) Failure to take an oath disqualified Quakers from sitting on juries, recovering stolen goods, suing for debts, carrying on trade in corporate towns, probating wills, defending title, or suing in equity or church courts. (Horle, 49) Violation of laws requiring the “Oath of Supremacy” could result in indictment, jury trial, and praemunire (placing the offender outside the King’s protection and forfeiting real and personal property) (Horle, 49) Failure to take the oath after subsequent “tenders” could result in a conviction for treason. (Horle, 49) Quakers were prosecuted for blasphemy and heresy in church courts. (Horle 52; Russell 63) Fox was imprisoned at Derby for blasphemy. (Russell, 63) Quakers were arrested for failure to perform military service or provide a suitable substitute. (Russell, 63) They were also arrested for public indecency and witchcraft. (Russell, 63-64)
Quakers also rejected “hat honor”; that is, they refused to remove their hat to social superiors. This also led to considerable trouble. Quakers usually kept their hats on, unless in prayer, as a sign of reverence to God and equality among people. (Russell, 60) In their speech, they used the informal “thou” instead of the more formal “you.” (Russell, 60) Quakers believed removing their hats to officials offered them reverence belonging only to God. (Russell, 60-61) Failure to show respect could lead to arrest when encountering a social superior and to contempt of court when refusing to remove hats in Court. (Russell, 61)
The variety of legal mechanisms for control and prosecution essentially banned Quakers from gathering in their unlawful Meetings for Worship, preaching their radical religious doctrine to others, and expressing their values through habits of speech and dress. The egalitarian Quaker public testimony challenged the hierarchical structures of Established Church and State.
2. Penn’s Trial
When William Penn and his friend William Meade showed up at Gracechurch Street Meeting House on August 14, 1670, they found it locked and guarded by soldiers. (Peare, 109) George Fox had been arrested under the Second Conventicle Act for preaching at Gracechurch Street three months earlier. (Peare, 107-109) The Meeting Houses were previously occupied by police, boarded up, and members taken to jail. (Peare, 109) Quaker George Whitehead was also arrested just after Fox at Gracechurch Street Meeting, for preaching a sermon on peace and love. (Peare, 108) Penn knew he would be arrested when he spoke to the people gathered outside the Meeting House that August day. (Peare, 109)
a. The Charges – A disturbing assembly and inciting a riot
When Penn began preaching he was arrested and taken to the Newgate prison in London. (Peare, 110) The arrest warrant, signed by the Mayor, read “Receive into your custody the body of William Penn herewith sent you, who was taken in the street called Gracious Street [Gracechurch Street] preaching seditiously and causing a great tumult of people on the royal street to be there gathered together riotously and routously, and him safely keep up until he shall be legally discharged.” (Peare, 110)
Penn and Meade were indicted under the common law for inciting a riot:
That William Penn, Gent. and William Mead, late of London, linen draper, with divers other persons to the jurors unknown, to the number of 300, the 14th day of August in the 22d year of the king, about eleven of the clock in the forenoon, the same day, with force and arms, &c. in the parish of St. Bennet Grace-church in Bridge-ward, London, in the street called Grace-church street, unlawfully and tumultuously did assemble and congregate themselves together, to the disturbance of the peace of the said lord the king: and the aforesaid William Penn and William Mead, together with other persons to the jurors aforesaid unknown, then and there so assembled and congregated together; the aforesaid William Penn, by agreement between him and William Mead before made, and by abetment of the aforesaid William Mead, then and there, in the open street, did take upon himself to preach and speak, and then and there did preach and speak unto the aforesaid William Mead, and other persons there, in the street aforesaid, being assembled and congregated together, by reason whereof a great concourse and tumult of people in the street aforesaid, then and there, a long time did remain and continue, in contempt of the said lord the king, and of his law, to the great disturbance of his peace; to the great terror and disturbance of many of his liege people and subjects, to the ill example of all others in the like case offenders, and against the peace of the said lord the king, his crown and dignity.’
Penn and Meade were charged for speaking to an assembly of persons in a way that was disturbed the peace. The charge represented the State’s fear of the power of assembly. The “peace” that was “disturbed” was the status quo which was rapidly changing during this revolutionary period of English history. Penn and Meade could not have been charged under the Conventicle acts because they were not assembled in a religious gathering. Indeed, the State locked the doors to their Meetinghouse to prevent the unlawful assembly, and so Penn resorted to the street.
b. Arraignment – Unclear Charges
When Penn and Meade were asked to plead, Penn replied, “It is impossible that we should be able to remember the Indictment verbatim, and therefore we desire a copy of it, as is customary on the like occasions.” The request for a copy of his indictment was denied, but the Court promised to allow him the liberty to make his defense. And so, Penn and Meade plead not guilty.
Eventually, due process required personal service of the indictment and clear notice of the charges. Penn was asking for something which modern defendants take for granted: a copy of the charging document. (The details of this trial are reported at Penn & Meade’s Case, 6 Howell’s State Trials 951 (Old Baily 1670)).
c. Contempt of Court
As they entered the Court Penn and Meade’s hats were removed from their heads. The Court ordered the bailiff to return their hats to their heads. Then the Court berated them for showing dishonor by keeping the hats on. The Court asked, “Do you know where you are?” and Penn replied, “yes.”
The Court asked whether he knew what respect was “due to the Court” and asked why he did not “pay it.” Penn maintained that he did respect the Court, but that taking off his hat was no sign of respect. The Court fined Penn and Meade forty marks for contempt of court. Penn noted that his hat was off when he came into the Court, and so “therefore not we, but the bench should be fined.”
d. Testimony before the Court
James Cook testified that he was sent to disperse a meeting at Gracechurch Street where he saw William Penn speaking to the people. He said he could not hear what Mr. Penn was saying because the crowd as too loud.
Richard Read testified that he saw Mr. Meade and Mr. Penn at the assembly where Mr. Penn was speaking. Mr. Read likewise could not tell what Mr. Penn said because the crowd of four or five hundred was too loud. Mr. Read said he saw Mr. Penn talking and gesturing with his arms, but he did not see Mr. Meade.
There was no evidence of violence or incitement to violence. There was no evidence that anyone was actually disturbed or the peace broken.
e. Protection against Self Incrimination
The Court asked Mr. Meade directly whether or not he was present in the crowd, and he responded, “It is a maxim in your own law, ‘Nemo tenetur accusare seipsum,’ which if it be not true Latin, I am sure it is true English, ‘That no man is bound to accuse himself.’ And why dost thou offer to insnare me with such a question? Doth not this shew thy malice? Is this like unto a judge, that ought to be counsel for the prisoner at the bar?”
The Court instructed him to be quiet, and insisted the Court was not trying to have him incriminate himself, stating, “Sir, hold your tongue, I did not go about to insnare you.”
This is a historically interesting early example of the assertion of the right to silence, the Constitutional protection against self-incrimination. (Levy, 359)
f. Insufficiency of the Indictment and Arbitrary Enforcement
Penn announced that he was lawfully assembled to preach, pray and worship, and asked to be informed exactly what law they had broken. He said, “We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves to preach, pray, or worship the Eternal, Holy, Just God, that we declare to all the world, that we do believe it to be our indispensable duty, to meet incessantly upon so good an account; nor shall all the powers upon earth be able to divert us from reverencing and adoring our God who made us. … I affirm I have broken no law, nor am I Guilty of the indictment that is laid to my charge; and to the end the bench, the jury, and myself, with these that hear us, may have a more direct understanding of this procedure, I desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.”
The Court said he was charged under the “common law.”
When Penn asked “Where is that common-law,” the Court scoffed that he could not go over so many cases over so many years and give him the proper education. Penn retorted, “This answer I am sure is very short of my question, for if it be common, it should not be so hard to produce.”
Penn refused to “plead to an Indictment that hath no foundation in law” and called the proceedings “arbitrary.” He pointed out that he cannot defend himself against a law that has not been set forth, “for where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all.” In short, “if the common law be so hard to be understood, it is far from being very common.”
Penn pointed out how vague charges lead to arbitrary enforcement. The same dynamic is played out within the context of our First Amendment freedom of speech. Vague laws restricting speech make it difficult to know when a person can and cannot speak. Vague laws also create an opening for law enforcement officials to exercise arbitrary and unfettered discretion in a way that has the potential of favoring certain kinds of speech over others.
g. Taking Too Long, Talking Too Much
The Court began to lose patience with the trial. Penn was taking too long in his defense, and raising difficult issues with the Court. The Court called Penn “a troublesome fellow” as Penn evoked “the rights and privileges of every Englishman.” The Court sent him back to jail to shut him up.
As Penn left he called, “Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in. matters of religion) must not be indispensably maintained and observed, who can say he hath right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined, and our estates led away in triumph, by every sturdy beggar and malicious informer, as their trophies, but our (pretended) forfeits for conscience sake. The Lord of Heaven and Earth will be judge between us in this matter.”
The Court, faced with the criminalization of assembly and speech, was frustrated by even more speech. The frustration may have come from a sense that the Court’s time was being wasted by the case. Handling cases of theft and assault, the Court was accustomed to real criminals causing real harm. There was something about cases involving the assertion of civil liberties that did not seem like real “crimes,” and this can frustrate judges who may believe their time is better spent on real crimes.
h. No threat of violence
Mr. Meade pointed out to the jury that there was no riot because there was no threat of violence. Meade, “turning his face to the jury, saith, You men of the jury, who are my judges, if the Recorder will not tell you what makes a riot, a rout, or an unlawful assembly, Coke, he that once they called the lord Coke [who wrote the classic treatises on basic British laws], tells us what makes a riot, a rout and an unlawful assembly. A riot is when three or more, are met together to beat a man, or to enter forcibly into another man’s land, to cut down his grass, his wood or break down his pales.”
Penn made arguments evoking fundamental and ancient rights. Mr. Meade makes a more practical, factual argument: we are charged with inciting a riot – but there was no riot. Courts would rather decide on easy issues of fact than make broadly applicable rulings about fundamental rights. Although Penn resonated with the Rights of Englishmen, Mr. Meade made the winning argument.
The Jury returned a verdict finding Penn guilty of speaking at Gracechurch Street, but this was not a violation of the law. The Verdict read: “We the jurors, hereafter named, do find William Penn to be Guilty of speaking or preaching to an assembly, met together in Gracechurch-street, the 14th of August last, 1670, And that William Mead is Not Guilty of the said Indictment.” The Judge sent them out to reconsider their verdict upon threat of penalty, and the returned a verdict of Not Guilty.
j. Conclusion of Penn’s trial and Juror Independence
The jurors were fined forty marks each and imprisoned until the fine was paid. (Horle, 117) Attorneys were obtained for the jurors and they obtained a writ of habeas corpus. Eventually the Court of Common Pleas granted the writ, deciding that a jury could not be imprisoned for its verdict. (Horle, 117; Peare, 123,) The Court of Common Please rescinded the fines and released the jurors, establishing the Rule in British law that jurors could not be punished for their verdicts. This legal landmark is called the Bushel (or Bushell) case, after the foreman of the imprisoned jury, who was named Bushel. (Horle, 117, Case of the Imprisonment of Edward Bushel, 6 Howell’s St. Tr. 999 (C.P. 1670)) William Penn publicized the case as an example of the vindication of the religious rights of Quakers in the struggle for religious freedom. (Penn, The People’s Ancient and Just Liberties Asserted. (1670))
Scholars have looked upon this case as an original instance of “jury nullification,” the principle that the jury can return a verdict acquitting defendants contrary to the law. (Reed 1125; Lowry, 137) However, a closer look at what occurred during trial shows that Penn and Meade were acquitted on the facts of the cases – there was no evidence of common law inciting a riot. And so, the important legal principle established is that jurors cannot be punished as a result of their verdict, not that jurors can nullify established laws.
1. Quaker Legal strategy: Meeting for Sufferings – Organized Legal Defense and Lobbying
As a result of the arrest, incarceration, and forfeiture of property of Quakers, they organized a “Meeting for Sufferings” in 1676, which initially aided, documented and brought to the attention of authorities the suffering of incarcerated Quakers and their families. (Russell, 138-139; Horle 162) Eventually the Meeting for Sufferings solicited legal opinions for defense of Quakers, hired lawyers, developed sophisticated legal strategies to protect property from forfeiture and prosecute informers, and developed a lobbying effort for the King and Parliament that eventually resulted in relief from most persecution with the adoption of the Toleration Act of 1689. (Horle, 18, 162-63,173-177, 200-201; Russell, 183, 186) Meeting for Sufferings became a centralized committee to coordinate legal and lobbying efforts, developing what may have been the first legal defense committee and lobbying organization in England. (Horle, 172-73) Quakers documented their prosecution and incarceration and sent the record of their suffering to the centralized legal defense committee in the Meeting for Sufferings; eventually this information was compiled presented to Parliament on a regular basis. (Horle, 173)
Some Quakers did not seek to put on a legal defense, while others used the legal tools cultivated and disseminated by the Meeting for Sufferings. Meeting did not require Quakers to explore legal remedies if they did not feel so led. Specific legal questions were answered by Quaker with legal experience, including Thomas Rudyard and Ellis Hookes who responded even when there was no legal remedy in order to help avoid uncertain expectation. (Horle, 174) Thomas Rudyard and William Penn were asked to obtain legal opinions on various issues and then share with Quarterly Meetings who enter them into books of precedents. (Horle, 176)
Legal defenses in trial included a demand for specific indictments naming the laws violated, and reference to the “fundamental law” and the “rights of free-born Englishmen” (Horle, 171,167-168) Often representing themselves with some advice from lawyers, Quakers often asked Judges to explain the process and procedures to them as they handled their own defense. (Horle, 171,167-168) Quakers also asked for strict construction of statute and common laws, holding the Court to precise wording in pleading and verdicts. (Horle, 171) On the whole, Quakers became fairly sophisticated in the handling of cases in court, the protection of property from forfeiture, and the use of pressure tactics to lobby Parliament and the Crown.
Quakers made great efforts to accurately document the persecutions fairly and accurately so that the credible stories could be shared with provincial members of Parliament to persuade them to intervene or support a change in the law. (Horle, 177) Quakers sent the stories of their suffering to the Meeting for Sufferings in London who compiled the information to lobby the King, the Privy Council, and Parliament. (Horle, 177) Quakers collected funds to print the record of sufferings and develop a regular system for providing the documented sufferings to the King, Privy Council, and Parliament. (Horle, 178) In 1682 Yearly Meeting suggested to Quarterly and local meetings to purchase copies of the “Statutes at Large” to understand how to respond to prosecution and “to whom to apply for redress.” (Horle, 179) “Anyone who was deemed useful, from the King to the least important official in church or state, might find himself the object of an intense Quaker campaign.” (Horle, 179)
In their response to persecution the Quakers developed legal expertise in the defense of cases and sophisticated communi-cations and lobbying machinery that raised consciousness of the plight of Quakers. The seeds of the first legal defense movement blossomed eventually into the Toleration Act of 1689 which largely relieved Quakers of their persecution. Early Quakers honed the organizational structures and strategies as they evolved and took on later political issues such as the abolition of slavery, the reform of prisons, women’s rights, and treatment for the mentally ill.
A. Modern Quaker Criminals in North Carolina – The Moral Monday Movement
1. Moral Monday Protests and Charges
Beginning Monday, April 29, 2013, a number of people gathered at the General Assembly to protest political actions taken by their legislators. Seventeen people were arrested at the first protest called “Moral Monday.” For the next thirteen (13) Mondays until July 29, 2013, protesters gathered to speak, sing, and advise their legislators. More than nine hundred persons were arrested in this largest act of civil disobedience in North Carolina history. Protesters raised a variety of issues including: the loss of health care benefits, the loss of unemployment benefits, the sales tax increase on poor people, the tax decreases on wealthy individuals and corporations, restrictions on the ability to vote with voter identification requirements and a reduction in the amount of time people are allowed to vote, repeal of the Racial Justice Act which addressed well-documented racial disparities in the imposition of the death penalty, cuts in funding to education and teachers, and restrictions on the provision of health care to women. The protests were peaceful, and involved political speeches, singing, and the carrying of signs.
During the course of the April 29, 2013 protest, General Assembly Police Chief Jeff Weaver determined that the assembly is unlawful and ordered protesters to leave the General Assembly. Some protesters did not leave when ordered. Chief Weaver decided that the persons who remained after his order to leave were guilty of failure to disperse on command, second degree trespass, and violation of legislative rules prohibiting the “displaying of unauthorized signs.”
Each Monday, from April 29 to July 29, protesters entered the General Assembly through open doors and proceeded, as a group, to the second floor of the legislative building. Sometimes they were singing as they entered, other times they were silent. At no point during their arrival or entry were they denied entrance or asked to leave or be quiet. The protesters stood in the rotunda area of the building, sang, and chanted with their fellow protesters. In the early protests they stood in front of entrances to the Senate and House chambers, big gold doors which were locked to keep protesters out. Authorities locked these doors out of fear that the peaceful protesters might come into the chambers of the House or Senate. Protesters began speaking outside the locked doors, just as Penn spoke outside the locked doors of the Gracechurch Meetinghouse.
During the protest, some protesters displayed signs. The protesters voiced their grievances and sang in the rotunda. All protesters submitted peacefully to their arrest. There were numerous people located in the rotunda of the office building. Among the crowd were members of the press, legal observers, state troopers, and other individuals.
Protesters were charged with three charges failure to disburse, violation of legislative rules, and second degree trespass:
Failure to Disperse on Command in violation of N.C. Gen. Stat. §14-288.5
An officer can order a crowd to disperse if “if he reasonably believes that a riot, or disorderly conduct by an assemblage of three or more persons, is occurring.” N.C. Gen. Stat. §14-288.5. This charge requires proof that the protester engaged in a “disorderly conduct” which is defined as “(a) Disorderly conduct is a public disturbance intentionally caused by any person who does any of the following:
Engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence.
Makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.”
N.C. Gen. Stat. §14-288.4(a)(1) and (2) .
1. Posting or Displaying of Signs or Placards in violation of N.C. Gen. Stat. §120-32.1
N.C. Gen. Stat. §120.32.1(B) authorizes the Legislative Services Commission to promulgate rules governing behavior in the General Assembly and classifies violation of these rules as a class 1 misdemeanor. These Legislative rules prohibit the carrying of “unauthorized signs.” Signs are unauthorized only when they advocate for or against an issue. The rules also prohibit the disturbance of the General Assembly, its staff, or members in the performance of their duties.
The warrants for this charge generally read:
I, the undersigned, find that the defendant named above has been arrested without a warrant and the defendant’s detention is justified because there is probable cause to believe that on or about the date of offense shown and in the county named above the defendant named above unlawfully and willfully did CREATE A DISTURBANCE IN THE NORTH CAROLINA STATE LEGISLATIVE BUILDING WITH LOUD SINGING AND YELLING, AND DISPLAYING UNAUTHORIZED SIGNS IN VIOLATION OF G.S. 120.32.1(B)
1. Second Degree Trespass in violation of N.C. Gen. Stat. §14-159.13
The warrant charged as follows:
I, the undersigned, find that the defendant named above has been arrested without a warrant and the defendant’s detention is justified because there is probable cause to believe that on or about the date of offense shown and in the county named above the defendant named above unlawfully and willfully did without authorization remains on premises of STATE OF NORTH CAROLINA, located at 16 WEST JONES ST RALEIGH, NC, after having been notified not to enter or remain there by another authorized person, JEFF WEAVER.
All three charges are based upon the idea that the gathering and assembly of the protesters constitute an “unlawful assembly.” Initially the State’s theory of prosecution was that Chief Weaver ordered protesters to disperse and leave because of concerns for potential violence. (Blythe, Oct. 4, 2013) When it became apparent that the gatherings were peaceful, the State shifted its theory that Chief Weaver declared the assembly unlawful because it “disturbed” the General Assembly. (Blythe, Dec. 4, 2013)
1. Durham Friends Arrested at Moral Monday Protests
Quakers from Durham were among the people arrested at the Moral Monday protest. Each of them gathered to challenge the actions of the State, in keeping with a long history, going back to the days of Fox and Penn as described earlier. Here is a brief look at some of these Friends.
a. Peter Klopfer
Peter Klopfer is a long time member of the Durham Friends Meeting, and he founded the Carolina Friends School along with his wife Martha Klopfer in 1962. It was the first integrated school in the North Carolina, and suffered a bomb attack during its construction. Peter engaged in sit in protesting racial segregation and was charged with trespass in 1964 in Orange County. His trial resulted in a mistrial, and the State refused to dismiss the charge and also refused to try him again. He challenged this procedure as violating his right to speedy trial, and won in a landmark Supreme Court decision. Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L. Ed. 2d. 1 (1967) Once again, Peter has been arrested for trespass, this time in the North Carolina General Assembly.
In discussing his case, Peter has said he entered the legislative building for the purpose of communicating to his representatives his view of their recent legislative actions. He entered the building lawfully, quietly, and stood silently near the entrance to the legislative chamber. He did not block the door or otherwise interfere with business of the assembly. He did not carry a sign, he did not chant, and he did not sing. When the order to leave was issued by Chief Weaver, he believed this order to be improper and in violation of his Constitutional right to peaceful assembly. He chose to ignore the order and submit to arrest as a citizen of North Carolina. He believes his presence in the building is a constitutionally protected right.
b. Chuck Fager
Chuck Fager is a long time Quaker who recently retired to Durham and has been attending Durham Friends Meeting. He marched with Dr. King in 1965 and was arrested three times in Selma Alabama during a voting rights campaign that produced the Voting Rights Act. He was outraged by what he called the “blatantly racist efforts at vote suppression” conducted by the North Carolina General Assembly. So he was arrested on Moral Monday “out of stubborn loyalty to the memories of Jimmie Lee Jackson, James Reeb, Viola Liuzzo, and Jonathan Daniels and others who paid the big price for voting rights.
c. Other Friends
Betsy Crites is a member of the Durham Friends Meeting who was arrested during a Moral Monday protest. She was arrested 1987 while praying in the U.S. capitol building in Washington, DC. Witness for Peace, which she founded and directed, stood with religious leaders from many traditions to pray for an end to the killing in Central America and a change of heart of the political leaders who were funding the wars there. Her arrest in Raleigh at the Legislative Building in July 2013 was a response to policies being passed that she believed would hurt the most vulnerable people in our society– the young, the poor, and minorities. Like the Central Americans who were on the receiving end of U.S. military appropriations, these are people with little or no voice before the powerful.
After she was arrested, she met a teacher, a school counselor, a social worker, a professor, an art gallery owner, a college student and several retirees and grandmothers who said they needed to stand up for public schools, for Medicaid and unemployment insurance. She was concerned for our State’s 500,000 poor who will be denied Medicaid, and for women who won’t have choices about their bodies.
Our co-clerk Cathy Bridge was arrested, and noted, “it was a wonderful experience that was also deeply meaningful and humbling. I feel proud of the community service that I and my fellow protesters performed through our civil disobedience and can only hope and pray that it will somehow make a difference for NC and our future generations.”
Karen Stewart was arrested with her husband David. She shared that “being arrested on Moral Monday was a privilege. Exercising my right to engage in civil disobedience was empowering. Being surrounded by the love and support of the protesters was a blessing. Doing something besides writing letters and signing petitions was rewarding. Getting to know the other arrestees was a gift. Songs of love, courage and change accompanied us. I still feel the sense of hope and possibility that I felt that afternoon in June. Our actions were not in vain. We raised the awareness of the people of North Carolina. We made it clear that there are a significant number of people that care about the wellbeing of all of our citizens. We recognized that we are in fact one family and have the will to make the changes that are necessary to protect the health and welfare of our people, our environment and our freedom.”
A. Historic Parallels between Prosecution of Quakers then and now
Looking at the legal theories of prosecution of early Quakers and the defenses they asserted through the modern lens of Moral Monday protest defense reveals interesting parallels.
1. Facts and Charges
Despite more than three centuries, the similarities in the charges are remarkable. The “gathering of three or more persons” has resulted in “disorderly conduct” that has “disturbed” the peace of the General Assembly. There are hints of the common law riot charge in the definition of “disorderly conduct,” requiring threats of violence. In the Legislative rules violation there is a criminalization of acts which “caused a disturbance.” The charge is just as vague and generalized now as it was more than three hundred years ago. Both then and now, the difficulty of the State in naming with specificity the actual criminal act, the persons harmed, and the nature of the harm arises from the State’s fear of the gathering and assembly of the People in a public space. The instinct of the Early Quakers and Moral Monday protesters to gather, speak, and pray in publicly symbolic places strikes at the heart of the insecure State. The State’s instinctive reaction is to use the police power of the state to disperse the gathering and silence the speech in order to preserve the status quo of the powerful. The legal tools the State uses now, and three hundred years ago, are remarkably the same: generalized statutes that criminalize the gathering of people to speak in public places.
2. Insufficiency of the Indictment
Penn demanded at the beginning of his trial to be informed of the precise law he violated, and demanded a copy of the indictment setting forth the charges against him. He contended that allegations against him were insufficient to support a violation of the law. There is a similar argument to be made with respect to the Moral Monday charge alleging a violation of the “sign rule.” The arrest warrant alleging that the protester “caused a disturbance … by singing, yelling, and displaying unauthorized signs,” is legally insufficient. There are no North Carolina cases interpreting this rule.
A similar statute prohibits “any person” from acting to “willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office. N.C. Gen. Stat. § 14-223. Appellate courts have required warrants and indictments charging this crime to set forth the person who was obstructed and what duty they were performing. State v. Smith, 262 N.C. 472, 474, 137 S.E.2d 819, 820-21 (1964) The Courts have determined that a person charged with obstructing an officer must know the name of the officer obstructed, and the duty performed at the time. Id. The “Disturb” rule similarly prohibits any visitor from disturbing “the General Assembly one of its houses, or its committees, members, or staff in the performance of their duties.” (Legislative Rule II.4) To sufficiently allege a crime, this charge should set forth the persons disturbed and the duty they were performing. Requiring specific allegations and holding the Court to strict interpretations of the proof with respect to these allegations is within the tradition of Quaker defense. Both then and now, an important part of the Defense is demanding more specific charges. Who was disturbed? What work was disturbed? How and when where they disturbed? It’s not enough to criminalize a person for causing a “generalized disturbance.” The effort to require specificity puts pressure on the State to admit the insecurity of its general fear of People assembled together.
The evidence at trial has shown that no specific work was actually disrupted or delayed at the General Assembly. There are no Members or Staff who have testified they were disturbed, delayed, or disrupted by the gatherings. There was certainly no violence or threat of violence. Just as in Penn and Meade’s case, there are strong factual arguments that the Moral Monday protesters are innocent of the crime of gathering in a disturbing way.
3. A Quaker Attorney without a Tie – Contempt of Court
When Penn entered Court he was held in contempt for failing to remove his hat. His habit of dress was interpreted by the Court as a sign of disrespect, but Penn tried to explain the religious basis of his habit. As I have defended protesters in Court, I have appeared in Court without a tie as a part of a concern and testimony for equality and simplicity. (Holmes, 29-31, 2012) By the time I appeared in the Moral Monday cases, the Courts were accustomed to my appearance without a tie. However, when I initially appeared without a tie, the judge was similarly concerned about respect, and I was threatened with contempt of Court. (Holmes, 36, 2012) I have since appeared in both our State Court of Appeals and State Supreme Court without a tie without incident. There are some judges who continue to order me to wear a tie in their Court under protest and upon punishment of contempt.
4. “Wasting Court Time” with Constitutional Arguments
The prosecutor, Colon Willoughby has complained that the protester choice to ask for a trial is “clogging up” the court system. (Jones, Dec. 3, 2013) The judge trying the cases has complained that it is taking too long to try the trespass cases, and that the District Court is not equipped to handle the complicated constitutional issues of the trials of these cases. (Blythe, Nov 8, 2013) “Lawton, the judge presiding over their cases, harangued the prosecutor and defense attorney on Thursday November 7, 2013, in a pointed speech highlighting the complexity of the cases and the unprecedented number of trials expected from the weekly demonstrations.” (Blythe, Nov. 8, 2013) Judge Lawton said, “We’re not judges for life,” Lawton said. “We don’t have two clerks, I’m doing this solo. …I’m trying to do a job, a very difficult job and you all throw this stuff at me. For the benefit of a grossly underpaid trier of fact in district court, show the respect of putting together a …brief.” (Blythe, Nov. 8, 2013) In a recent trial, Judge Hamilton ordered me to limit my argument to fifteen minutes.
These frustrations with the vigorous assertion of fundamental rights echo the frustration of the Court in Penn’s case, which ordered Penn out of the Court room and fined the Jurors who acquitted him. Advancing legal theories of increased freedom of assembly and public speech still find a chilly reception in Court. The Courts are best equipped to handle regular, repetitive, ordinary crimes. These “crimes” of assembly and speech are less of a real “crime” and more of a conflict between the People and the State, perpetually reenacted to keep freedom alive. The District Court is not built to handle these complex and important issues which speak to the soul of our democracy. The Courts and prosecutors are understandably frustrated because they are being asked to do something they do not ordinarily have to do, and decide issues fundamental to our common identity as a republic. The judges and prosecutors are doing a remarkably good job handling these cases considering the very little time or resources they have allocated to the cases.
5. Fundamental Rights of Assembly and Speech and Arbitrary Enforcement
In his assertion of his innocence, Penn relied on the “ancient fundamental laws of England.” After his trial he wrote The People’s Ancient and Just Liberties Asserted (1670) (Penn, 3) In this tract he advanced his “just demand for religious liberty,” and claimed his right to freedom of conscience, speech, and assembly as a part of the Fundamental Laws of England. (Penn, 4) During his trial, Penn also complained of the arbitrary enforcement of the rule by the Mayor issuing his arrest warrant.
The Moral Monday trials are raising the fundamental laws of our land as a defense to peaceably assembling, speaking, praying, and holding signs in our General Assembly. The First Amendment to the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment bears upon the State of North Carolina through the Due Process Clause of the Fourteenth Amendment. Article I Section 12 of the North Carolina Constitution provides: “The people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the General Assembly for redress of grievances; but secret political societies are dangerous to the liberties of a free people and shall not be tolerated.” Article I Section 14 of the North Carolina Constitution provides: “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.”
These fundamental laws of our land support the rights of Moral Monday protesters to gather in the North Carolina General Assembly to sing, pray, and hold signs. Moral Monday protesters were unlawfully arrested for exercising her constitutional rights to assemble at the General Assembly, a forum designated by the North Carolina Constitution for the exercise of their State Constitutional right to directly instruct her legislators and engaged in unrestrained political speech. N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 907-08, 102 S. Ct. 3409, 3422-23, 73 L. Ed. 2d 1215 (1982) (holding the right to assemble as inseparable from the right to speak because “collective effort individuals can make their views known, when, individually, their voices would be faint or lost”); Citizens United v. Fed. Election Commission, 558 U.S. 310, 339-41, 130 S. Ct. 876, 898-99, 175 L. Ed. 2d 753 (2010) (protecting political speech as the highest form of speech protected by our Constitution)
Another Constitutional problem with Chief Weaver’s order is that he exercised sole discretion in determining whether the General Assembly was “disturbed.” Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Edwards v. S. Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963) Chief Weaver allowed protesters into the second floor of the General Assembly each week knowing they were going to protest, and then declared their assembly an “unlawful assembly” when he determined the General Assembly had been “disturbed.” This arbitrary enforcement of the rule was the same kind of unfair application of the law that led Penn to complain.
6. No Violence, No Riot
Penn was charged under the common law charge of inciting a riot. The jury did not find that he spoke any words causing a riot, or that any riot ensued. Mr. Meade pointed out that a riot requires some violence or threat of violence which did not occur. The prosecution of Quakers, a non-violent people, for causing a riot led to a not guilty verdict because there was no evidence of violence. The Jury could only find that Penn spoke, and did not find any violence.
Similarly, at the first Moral Monday trial, the State proceeded on the theory that the assembly was unlawful because there was a reasonable belief that there was going to be violence. The definition of “disorderly conduct” required a showing of violence, threat of violence, or riot. N.C. Gen. Stat. §14-288.4(a)(1) and (2) The State initially claimed that Chief Weaver’s order to disperse was based upon the threat of violence. (Blythe, Oct 4, 2013)
Mary Elizabeth Wilson, the assistant Wake County district attorney assigned to the 940 cases stemming from the “Moral Monday” arrests, argued that Weaver, the police chief tasked with keeping peace inside the building, could order people to disperse and leave the state property if he had “reason to believe” there might be violent and risky behavior. The judge agreed with the prosecutor’s argument, saying the officer must “reasonably believe disorderly conduct is occurring.” (Blythe, Oct. 4, 2013)
Despite clearly peaceful, non-violent protests, the Moral Monday protesters were charged with “failure to disperse” which requires a showing of an imminent threat of violence. N.C. Gen. Stat. §14-288.4(a)(1) and (2) After a few trials, it became clear that there was never a threat of violence and the Judge began to acquit protesters of the charge of “failure to disperse.” Then the State stopped proceeding on the theory of “failure to disperse” because the State recognized there was no evidence of violence or threat of violence.
It is a common assumption in the prosecution of gatherings of people that there is a potential for violence. This assumption reveals the State’s fear of the people coming together, despite fundamental laws of the land which encourage the gathering of the people.
7. Jury Nullification
Penn’s case is an example of the jury finding contrary to the way the Court wanted the jury to find. It has been cited as the first example of jury nullification. (Reed, 1125) So far, all of the Moral Monday trials have been bench trials before a judge. Those who are watching the Moral Monday trials are awaiting the first jury trials and wondering whether jury nullification may play a role. (Hall, Nov. 3, 2013) In an editorial for the Raleigh News and Observer, former prosecutor Jack Hall wrote, “Criminal conviction of the Moral Monday folks seems harsh. The resolution of the prosecution of the Moral Monday protesters might usefully involve the concept of “jury nullification.” Let the government know how much the public is not inclined to convict those who truthfully and fairly criticize our lawmakers.” (Hall, Nov. 3, 2013)]
A. Lessons in Civil Liberty, Community based lawyering, and the Spirituality of Gathering
I have represented protesters in North Carolina for more than a decade, and I have watched as the State has taken increasingly aggressive police action to keep people from gathering to peacefully protest in central public spaces. I represented Margaret Schucker and seven other demonstrators who were arrested on Oct. 27, 2011 for not leaving the sidewalk in front of the Capitol. Schucker wore a blue and white handicapped permit on her chest and told officers she had back problems and needed the chair to participate. Officers arrested her after she refused to get up from her chair on the sidewalk. (Blythe, February 14, 2012). These charges were ultimately thrown out. (Blythe, February 14, 2012).
More recently, On December 23, 2013, a State Court Judge Allen Baddour ordered the State to allow the Moral Monday Protesters to gather on the State Capitol grounds for a rally and prayer vigil after the State had denied their permit to the Capitol Grounds and confined the demonstrators to Halifax Mall, a big grassy area enclosed by state office and legislative buildings. The hearing was held hours before the evening rally organized by the NAACP state chapter president Rev. William Barber II and others opposed to new policies and laws adopted this summer by the Republican-led General Assembly. It was important to the Court’s decision that the State allowed gatherings of the same size or larger at the State Capitol Grounds for state sponsored events, including the Governor’s Christmas tree lighting ceremony a few weeks earlier. (Blythe and Kenney, December 24, 2013)
In my hometown of Durham, our local police recently used riot gear and gas bombs to disperse a crowd who had gathered peacefully to protest the gunshot death of a handcuffed teenager in the back of a police patrol vehicle. (Kenney, December 19, 2013)
The space where people can lawfully gather to speak and protest continues to shrink. The use of police to arrest and even attack peaceful protesters is a practice accepted by the authorities. There is a concerted restriction in the environment available for people to assemble, speak, and exercise constitutionally protected activities. Like the prosecution of early Quakers, the Moral Monday legal defense in Court could have a broader impact on civil liberties and freedom, well beyond the specific religious, political and social messages that inspired the gatherings.
Having tried several Moral Monday cases, and studied numerous Constitutional First Amendment cases, I ought to have some insight into the nuances of First Amendment litigation. But what strikes me most clearly in this moment is the clarity of vision of my clients. Even as I stumble around to find the proper Constitutional doctrines, the best legal boxes, to package their behavior into legal arguments, I am learning from them the freshness and the vitality of every re-assertion of liberty. I sense in them the flame that must have been kindled in the first Quakers as they advanced toward freedom, the same fire that burned segregation to the ground, the fire burning for freedom in their bones.
Quoting the prophet Jeremiah, my friend (and Moral Monday arrestee) Jonathan Wilson-Hartgrove describes the anger at injustice as a “fire shut up in my bones” burning to burst out and be heard. (Wilson-Hartgrove, 191) When I watch the videos of their magnificent protests preparing for trial, I hear prayers, cheers, chants, and songs. I see people of all ages, races, colors, creeds, joining hands. These Moral Monday heroes light the fire in my bones, no matter how tired I feel or mired I get in doctrinal nuances.
There are no legal boxes that fit their extraordinary public witness, just as there were no legal boxes to fit the early Quakers. They were both breaking the existing legal boxes to make more room for freedom to grow. My job as their attorney is to help them figure out how to keep their flame alive and nourish it amidst prosecution. I have the wonderful opportunity to collaborate with these amazing people, and to help them understand the bizarre terrain of court. I am a guide and advocate helping them navigate a system that often makes no sense.
There is a temptation among lawyers to steal the conflict away from the client and try to package it in a way that robs the client of the power and dignity of participating in their own case. (Christie, 4) In fact, my legal training to frame their behavior into legal boxes could have the unintended consequence of dousing the flame. My clients are teaching me the power of a more collaborative approach to lawyering. With their help, I can help fuel and magnify the flame of their public witness through the Court process. I am ignited as well. In the process, civil liberties will grow as a by-product of this relationship.
I am also learning about the power of community and raising consciousness of unfairness. The Moral Monday Arrestees are cultivating a very special solidarity. Even though many of them were led to protest for very different political issues, they have shared the common experience of arrest for a common cause. There is a growing and vibrant community of Moral Monday arrestees. Former strangers embrace each other on the streets as friends, connected by the powerful experience of public witness. People who were getting older and more isolated can suddenly share their cause with new friends. Young people who did not fight the battles for women’s rights, worker’s rights, and civil rights are suddenly in a community with veterans of these movements who share the history and place the present movement within a broader historical context.
Many volunteer lawyers have formed a community to defend the protesters without charge. We have started to learn how to organize, collaborate, share ideas, research, and resources to help our clients individually and the movement as a whole. The process can be messy. There can be serious disagreements. There are a variety of approaches. We are experiencing a new kind of community. The community and arrestees, their lawyers, and the broader Moral Monday movement is a unique historical opportunity to experiment in new ways of building community around shared visions of social justice and exploring different tools to advance basic human rights and dignity.
As this experiment unfolds, we can learn from the early Quaker example some important lessons. The Quakers experienced a similar galvanization of their community through criminal prosecution. They came into conflict with the authority of the State and Established Church from a religious fire that ultimately resulted in greater freedom of conscience, speech, and assembly for all citizens. Documenting each case was essential to their success. They used the documented cases to publicize their peaceful and prayerful response to injustice. They shared their documented sufferings in pamphlets to the public, petitions to Parliament, the Privy Council and the King. And they told their stories and shared their religious leadings in Court in their own defense. They teach the importance of documenting what is happening and coordinating community organizing with lobbying, legal defense, and media publicity efforts.
For the fire of freedom to truly make to space for assembly, speech, and human rights, there must be more than the enforcement or expansion of legal rules. The effort to change society by shifting rules must also be accompanied by the broader work of shifting culture. (Stoddard, 978). To change the culture, the effort to change rules must align with a very broad shift in cultural attitudes, norms and practices. There must be a consistent effort to maintain public awareness of the changing of the culture and the rules. There must be consistent and reinforced examples showing the legitimacy and validity in the changing of the culture and the rules. And there must be a commitment to the continuous and vigilant enforcement of the shift in the culture and the rules. (Stoddard, 978) This means that lawyers, activists, organizers, leaders, and all those committed to change must engage in conversations from bars to coffee shops to the General Assembly and Governor’s office. The cultural work and the legal work need coordination and unity of spirit and purpose. As a lawyer I must expand my traditional role as advocate for an individual to an advocate for a community. I am learning a new way of community lawyering. (Alfieri, 1748-52)
In the legal defense of individual cases, I hope to empower arrestees to continue their public witness through the story of the trial. In legal defense, the Quakers most often defended themselves with the assistance of legal opinions obtained in advance. They did not allow the lawyers to steal their conflict or own their movement. This is an important lesson for Moral Monday arrestees and lawyers. My goal as an advocate is to listen to the arrestees and help them craft a defense that is most true to their witness. Having joined into one common voice of solidarity during the protest, the trial can become an opportunity to hear the variety of individual solo voices and truly understand the political issues at stake.
A great example of this kind of trial was the Trial of AIDS researcher Dr. Charles van der Horst. (Blythe, Dec. 11, 2013) He explained during his trial how the rejection of federal funding to expand Medicaid was going to kill his clients. (Blythe, Dec 11, 2013) He told the story of clients who suffered because they could not get access to prescription drugs, “I think that’s what got me crying,” van der Horst said. Although he had never been arrested before, he did not regret trying to raise awareness about the injustice of denying basic medical care for people because they could not afford it. (Blythe, Dec. 11, 2013). Attorney Geeta Kapur did an amazing job trying this case before a frustrated judge, who ultimately was able to hear the clear and poignant voice of Dr. van der Horst and the meaning of his public witness.
We are also learning the lesson of raising consciousness through mobilization. The early Quaker experience of going to prison led to a coordinated and substantially successful effort to reform the prisons of England. (Russell, 261-64). I observe Moral Monday arrestees experiencing and witnessing the class and racial inequalities in our court system of mass incarceration. As a part of our client meetings every two months, I try to make a presentation and facilitate a community discussion on inequality in the Courts. Some Moral Monday arrestees are already deeply involved in the issues of inequality in our justice system, and they can share their perspectives with other Moral Monday protesters who have not had the same experiences. The deepening of community and expansion of social consciousness continues even though the protests have paused for a while this winter. I think there is potential for this inspiring group of people to expand their public witness in ways that are hard to imagine right now. Maybe the Moral Monday arrestees can bring their fire and vision to our system of mass incarceration, desperately in need of reform and greater social imagination. The ripple of their testimony will reach waters far beyond my view of the horizon.
My Moral Monday experience is also helping me to understand the spirituality of this vocation of lawyer. (Allegretti, 24-36) The intersection of my radical Christian faith and my conservative profession has been a challenging and rich experience. (Holmes, 2013) It is impossible to represent so many spiritually powerful people without being touched by the divine power within them. With so many priests, pastors, and preachers arrested, I sometimes joke with my friends that when I get to the Pearly Gates, I can say to St. Peter, “I know I was a lawyer St. Peter, but you won’t find many lawyers who represented as many preachers as I have.” They are teaching me that the spiritual is profoundly political. Paying attention to the divine within me leads me to the power of love.
As Dr. King put it, “Power without love is reckless and abusive, and love without power is sentimental and anemic. Power at its best is love implementing the demands of justice, and justice at its best is power correcting everything that stands against love.” (King, “Beyond Vietnam,” Speech at Riverside Church in New York, April 4, 1967). The power I have as an attorney can only lead to justice if it is guided by love. Working as an attorney can involve great suffering, handling the hardest and most tragic conflicts in our society. Representing Moral Monday arrestees helps me see that it can also be redemptive and healing, when practiced in a shared community committed to love, justice, human dignity and human rights.
The Quakers, the Moral Monday Protesters, the Lawyers, and the Court personnel are learning the power of gathering together. There is a simple truth involving this most radical act: gathering together. It was expressed through the Spiritual insight of the early Quakers who adopted gathering in silence as the primary form of worship. At a time where the Established Church was an arm of the State, governed by a hierarchical structure, the idea that the Church was just the gathering of regular people was dangerous. Unlawful assemblies of Quakers suffered death and imprisonment to protect this right to assemble. For the Quakers, the gathered Meeting served as a spiritual mechanism to check the excesses of mystical individualism. Taken to its extreme, the idea of the divine light within all people could lead to anarchistic individualism. Yet power is dangerous when it is vested in a few. Quakers developed a group mysticism in which the gathering of the people was the way individuals found their freedom alone and together through the Spirit. The gathered Meeting was its own system of spiritual checks and balances.
In a similar way, our democracy was born from this stubborn insistence on the right to gather, the freedom of conscience, and the freedom of speech. The right of the people to gather is a check on the power of the State, and a constant reminder that our government is of the people. The spiritual health and wellbeing of our political institutions rests on the premise that the people can gather and make their voices heard to those in power. The health of our political institutions is threatened when individuals have the power to declare some assemblies unlawful, and disband people gathering for the common good.
The arrest of more than nine hundred people in the heart of our General Assembly is a resounding resurgence of this impulse to claim our heritage of freedom. Just as the early Quakers could not foresee the establishment of Pennsylvania Constitution or the Bill of Rights, we cannot imagine now the historic consequences of the Moral Monday arrestees asserting their right to assemble, speak, and have a trial in court.
In mounting their defense to arrest for unlawful assemblies, early Friends relied upon the gathering of jurors to check unjust laws and powerful judges bent on religious persecution. The right to a jury trial is an institutional embodiment of the power of a gathering to find truth and protect freedom. Our Courts are requiring us to gather every few weeks for another Moral Monday trial, to bring these issues into the open air and discuss them over and over again. We are building community with the prosecutors and judges. We are building a community of lawyers radicalized by the assertion of civil rights.
When trying to intuit the spiritual significance of gatherings, I am reminded of Jesus driving out the people making money in the temple. “My house will be a house of prayer, but you have made it a ‘den of robbers.” Luke 19:46. Jesus caused his own “disturbance” in the center of power. He went there to vindicate the power of prayer, and point out the risk of greed. This task of building and living within the Beloved Community in the here and now can become disturbing because there are a lot of vested interests supporting exclusion, inequality, and inhumanity. Part of the task is breaking down walls even as we build bridges.
Jesus also recognized the power of a conspiracy of prayer to help heal conflicts between people, “for where two or three come together in my name, there am I with them.” Matthew 18:20. These two or three are gathered to resolve conflict among brothers and sisters. Matthew 18:15. These gatherings for prayer about conflict in our power centers are first and foremost spiritual acts that radiate political consequences. In this way our unrest becomes blessed.
Alfieri, Anthony, Practicing Community, 107 Harv. L. Rev. 1747 (1994)
Allegretti, Jospeh, The Lawyer’s Calling: Christian Faith and Legal Practice 24-36 (1996).
Blythe, Prosecutor Throws out Charge Against Occupy Protester, News and Observer, (Raleigh NC) February 14, 2012.
Blythe, Anne, First ‘Moral Monday’ protestor to stand trial is found guilty, News and Observer, October 4, 2013.
Blythe, Anne, Judge Dismisses 2 ‘ Moral Monday’ cases after daylong trial, News and Observer, Oct 11, 2013
Blythe, Anne, ‘Moral Monday’ protesters arrested same day and tried together get different verdicts, News and Observer, Nov. 8, 2013.
Blythe, Anne, Barber, ‘Moral Monday’ protesters appeal convictions, News and Observer, Dec. 4, 2013
Blythe, Anne, Aids Researcher Gets Emotional During Moral Monday Trial, News and Observer, Dec. 11, 2013.
Blythe and Kenney, ‘Moral Monday’ Rekindles its Movement with Big Protests at the North Carolina State Capitol, News and Observer, Huffington Post (online), December 24, 2013.
Christie, Nils, Conflicts as Property, 17 British Journal of Criminology 1 (1977)
Hall, John “Jack”, Moral Mondays and jury nullification, News and Observer, Nov. 3, 2013
By John T. “Jack” Hall
Holmes, Scott, Lawyering the Quaker Way, Duke Divinity Faith and Leadership, online journal, July 30, 2013.
Holmes, Scott, Taking off My Tie: The Adventures in Fashion of a Quaker/Lawyer,” Volume 6, Journal of the North Carolina Yearly Meeting Conservative 28 (2012)
Horle, Craig, The Quakers and the English System 1660-1688, University of Pennsylvania Press (1988)
Ingle, Larry, First Among Friends: George Fox & the Creation of Quakerism, Oxford University Press (1994)
Jones, Jessica, “Moral Monday Defendants Receive Varying Verdicts in Court,” WUNC, Dec. 3, 2013
Kenney, Andrew, Durham Police Huerta protesters, gas used to disperse group, News and Observer, December 19, 2013.
Lawry, Robert, The Moral Obligation of the Juror to the Law, 112 Penn. St. L. Rev. 137 (2007)
Levy, Leonard W., Origins of the Fifth Amendment: The Right Against Self-Incrimination. Oxford University Press (1968).
Peare, Catherine Owens, William Penn: A Biography (1956) University of Michigan Press
Penn, William, The People’s Ancient and Just Liberties Asserted (1670) in The Political Writings of William Penn, ed. Andrew R. Murphy, (2002) Liberty Fund
Reed, John, Penn, Zenger and O.J.: Jury Nullification – Justice or the ‘Wacko Fringe’s’ attempt to further its anti-government agenda?, 34 Duquesne Law Review 1125 (1996)
Russell, Elbert, The History of Quakerism, MacMillian Press (1942)
Wedeking, Jim, “Quaker State: Pennsylvania’s Guide to Reducing Friction for Religious Outsiders under the establishment clause,” 2 N.Y.U. J. L. & Liberty 28 (2006)
Wilson-Hartgrove, Jonathan, Strangers at My Door: An Experiment in Radical Hospitality (Convergent Books, 2013)
Constitutional Provisions, Cases and Statutes
Article I Section 12 of the North Carolina Constitution
Article I Section 14 of the North Carolina Constitution
Case of the Imprisonment of Edward Bushel, 6 Howell’s St. Tr. 999 (C.P. 1670)
Citizens United v. Fed. Election Commission, 558 U.S. 310, 339-41, 130 S. Ct. 876, 898-99, 175 L. Ed. 2d 753 (2010)
Edwards v. S. Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963)
First Amendment to the United States Constitution
Klopfer v. State of North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L. Ed. 2d. 1 (1967)
N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 907-08, 102 S. Ct. 3409, 3422-23, 73 L. Ed. 2d 1215 (1982)
N.C. Gen. Stat. §14-288.5
N.C. Gen. Stat. §14-288.4(a)(1) and (2)
N.C. Gen. Stat. §120-32.1
N.C. Gen. Stat. §14-159.13
Penn & Mead’s Case, 6 Howell’s St. Tr. 951, 954-55 (Old Baily 1670)
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)
N. A. A. C. P. v. Claiborne Hardware Co., 458 U.S. 886, 907-08, 102 S. Ct. 3409, 3422-23, 73 L. Ed. 2d 1215 (1982)