Civil disobedience is as American as apple pie. Our nation has a long and rich history of thousands of principled political protest actions that violated the law in the name of justice.
Civil disobedience is as American as apple pie. Our nation has a long and rich history of thousands of principled political protest actions that violated the law in the name of justice.
Our country was founded on a series of acts of civil disobedience. From its very foundation through the movements of people who opposed slavery, supported women’s suffrage, acted for civil rights, and numerous other peace and justice efforts, the actions of people who risked arrest and imprisonment for their principles have helped bring about much needed social change.
Why civil disobedience? As Martin Luther King Jr., who was arrested and imprisoned many times, wrote in his 1963 letter while he was incarcerated in the Birmingham, Alabama, jail:
We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. . . . [W]e who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive.
Most lawyers are uninterested in civil disobedience. Many are uninterested in justice itself. Most lawyers choose to work for the corporation or person who is the strongest, the richest, the most powerful, or the one who can pay the most. These lawyers likely agree with the definition of justice defined by Thrasymachus, who is quoted in Plato’s Republic:
I say that justice or right is simply what is in the interest of the stronger party. . . . Each type of government enacts laws that are in its own interest, a democracy democratic laws, a tyranny tyrannical ones and so on; and in enacting these laws they make it quite plain that what is “right” for their subjects is what is in the interest of themselves, the rulers, and if anyone deviates from this he is punished as a lawbreaker and “wrongdoer.” That is what I mean when I say that “right” is the same thing in all states, namely the interest of the established government; and government is the strongest element in each state, and so if we argue correctly we see that “right” is always the same, the interest of the stronger party.
People who commit civil disobedience, and often the lawyers who represent them, usually consider law and justice as distant cousins who need to be reconciled. Thus, breaking the law for justice’s sake makes perfect sense to them. Financially, these cases rarely make any sense at all. Most all are pro bono. Some lawyers may even have to invest some of their own money in defending the people who risked arrest for principle.
This article is for those lawyers—the lawyers who counsel and represent people who are thinking about or have committed civil disobedience, who have been arrested for violating a law in order to stand up for justice; lawyers who are willing to work with people and movements committed to a more radical vision of justice.
Importance of Civil Disobedience in Democracy
Civil disobedience was one of the tools used to create the United States. It has been an important part of every movement for social change in our history up to the present. Here are but a few examples:
- The 1773 Boston Tea Party was led by the Sons of Liberty, a group that engaged in open and covert illegal resistance to British rule in colonial America.
- In 1774, 51 women in North Carolina agreed to boycott all British tea and cloth in what is known as the Edenton Tea Party.
- In 1775, women in Wilmington, North Carolina, burned their tea to protest trade legislation and increased taxation.
- The Declaration of Independence, ratified on July 4, 1776, signed by numerous lawyers, was an act of treason against British rule.
- In 1786, American farmers took up arms against the government in Shays’ Rebellion to stop court foreclosures of farms, including those of impoverished soldiers. They forced the courts to close and released prisoners. Their actions were declared to be treason but were ultimately enacted into laws protecting against unfair foreclosure.
- In the 1700s and 1800s, slaves broke the law by running to freedom, and others broke the law by helping them do it.
- In 1872, Susan B. Anthony was arrested for voting when women were not allowed to vote. The court said she undertook to settle a principle in her own person and found her guilty of the federal crime of voting as a woman.
- In 1917, hundreds of women were arrested for picketing in favor of the right to vote in front of the White House, and dozens spent time in jail.
- At the end of 1936, thousands of auto workers began a sit-down strike in their workplace in Flint, Michigan. The strike lasted 44 days and helped establish the labor movement.
- In 1942, Gordon Hirabayashi was arrested for being out of his home after 8:00 pm at night. Despite the fact that Gordon was a U.S. citizen, was born in the United States, was educated in public schools, and was, at the time of his arrest, a senior at the University of Washington, he was arrested because he was of Japanese ancestry and by law had to be inside his home from 8:00 pm to 6:00 am every day. He was convicted by the jury and sentenced to three months in prison. The U.S. Supreme Court denied his appeal and affirmed his conviction. His conviction was only overturned some four decades later in 1987.
- In the 1960s, tens of thousands of African-American citizens conducted illegal sit-ins at restaurants that were legally segregated. Three thousand were arrested in 1960 alone.
- In the 1970s, more than 12,000 people were arrested for civil disobedience protesting against U.S. involvement in the Vietnam War.
- In just two weeks in 2011, more than 1,000 climate justice advocates were arrested in front of the White House protesting the Keystone XL Pipeline.
- Political conservatives engage in civil disobedience as well. Notably, Kim Davis of Kentucky went to prison in 2015 for refusing to issue marriage licenses to same-sex couples, and Roy Moore was twice kicked off the Alabama Supreme Court, first in 2003 for refusing to remove a 5,000-pound statue of the Ten Commandments in a judicial building, and later in 2016 for unsuccessfully trying, like Davis, to stop marriage licenses from being issued to same-sex couples.
- Many pro-choice and pro-life activists have been arrested for civil disobedience.
- Between 2011 and 2016, more than 7,000 people were arrested for civil disobedience protests in the Occupy movement. More than 800 people were arrested resisting the Dakota Access Pipeline at Standing Rock, North Dakota, in 2016 and 2017. Black Lives Matter protests have resulted in hundreds of arrests. Hundreds were arrested in North Carolina as part of the Moral Monday campaign. Clergy members have been arrested protesting for human rights for immigrants and supporting health care. Many thousands of grade, high school, and college students walked out of classes in more than 3,000 schools in March 2018 to protest gun violence; while no arrests have been reported, there have been threats of discipline by some school authorities (tinyurl.com/yamxml66).
(Those who wish to learn more history about civil disobedience should look at Nicholas N. Kittrie and Eldon D. Wedlock Jr.’s The Tree of Liberty: A Documentary History of Rebellion and Political Crime in America (Johns Hopkins University Press, 1986; revised edition, 1998). Their history includes more than 700 pages of documents of political protest and civil disobedience from colonial times to the 1990s.)
Ethical Considerations for Lawyers Counseling Clients Interested in Civil Disobedience
Lawyers can and should assist people considering civil disobedience. Some wrongly think lawyers cannot have anything to do with people who are considering civil disobedience. What is accurate is that legal ethics say lawyers cannot assist people in breaking the law.
However, all lawyers advise people. The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) make it clear that lawyers can explain what the law is and how it might be applied to people who are considering risking arrest. The Model Rules specifically cover this situation. Model Rule 1.2 (d) states:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Thus, while not assisting a potential client in criminal conduct, the lawyer can discuss legal consequences of proposed courses of conduct.
There is also no problem at all in representing people who have engaged in civil disobedience. This is treated just as any criminal defense matter. And the Model Rules even make it clear that professionally no one can consider representation as an endorsement of the activities engaged in by a client. Model Rule 1.2 (b) states, “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Most lawyers who represent people in civil disobedience cases are supporters of the causes and movements of the people arrested. These lawyers reject the idea that law is neutral or that justice is what the powerful say it is. These lawyers support the critique of neutrality best explained by Archbishop Desmond Tutu: “If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”
Ethical Issues for Lawyers Who Are Themselves Considering Engaging in Civil Disobedience
What about lawyers who themselves engage in civil disobedience?
It is uncontested that justice and law are not the same. Law is what the law-making body says it is, whether that be a majority of a legislative body, the proclamation of an executive, or the latest pronouncement of the judiciary. Justice is something quite apart. When justice and law conflict, most lawyers swallow their disagreement and choose to follow the law. However, some lawyers do not.
Lawyers themselves sometimes disobey legal orders to stand on principle. History points out famous examples of lawyers who engaged in civil disobedience, people such as Mohandas Gandhi and Nelson Mandela, but there are many others not so well known.
- Many lawyers were charged with breaking the law in the 1800s when they illegally helped runaway slaves.
- In 1990, Janet Benshoof, a prominent women’s rights lawyer, was arrested for speaking about abortion in Guam.
- A California real estate lawyer was arrested as part of the Occupy protest in California in 2011.
- In 2013, several law professors were arrested for civil disobedience as part of the Moral Monday protests in North Carolina.
- In 2016, 11 lawyers in Los Angeles were arrested for civil disobedience protesting immigration raids.
- Recently, Andrea Burton, a 30-year-old Ohio criminal defense lawyer, was handcuffed and jailed for refusing to take off a Black Lives Matter pin while appearing in court. Months later, a Nevada deputy public defender, Erika Ballou, refused to remove a Black Lives Matter pin when ordered to do so by a judge. While both situations were ultimately resolved without criminal or ethical charges being filed, lawyers do stand up for their own beliefs and at times risk arrest.
Judith A. McMorrow collected many statements of people who argue that lawyers, because they occupy special positions inside the legal system, should not engage in civil disobedience (tinyurl.com/ybjkd38d). Others, such as Kathryn Abrams, point out the power for social change of lawyers who chose not to follow the law because they clearly see the legal system as just as much a part of the problem in social justice struggles as any other institution (tinyurl.com/y9hd4r5c).
ABA Model Rule 8.4 discourages engaging in conduct that is prejudicial to the administration of justice. Section 5 of the Preamble to the Model Rules urges lawyers to conform to the requirements of the law, “both in professional service to clients and in the lawyer’s business and personal affairs.” At the same time, however, Section 6 of the Preamble imposes on lawyers the obligation to “seek improvement of the law” to make it more just.
Scholars researching this have found few instances of disciplinary actions against lawyers who engage in civil disobedience, concluding “there is a measure of unofficial tolerance for conscientious noncompliance by lawyers” (tinyurl.com/y7wupo7q). Others suggest that social justice lawyers are justified when they prioritize their own moral codes over codes of professional ethics (tinyurl.com/ycufy7qs).
Counseling Clients Considering Civil Disobedience
Lawyers can and should be prepared to answer questions from clients about the legal consequences of various scenarios for people or groups considering civil disobedience.
Lawyers should also not be involved in the actual planning of the civil disobedience because of potential ethical problems and because the lawyers might become fact witnesses if they help plan the civil disobedience.
There is nothing unethical in explaining differences in jurisdiction, prosecution, and sentencing based on locale or conduct. Nor is there anything unethical in explaining the different types of conduct and charges that make a misdemeanor different from a felony. For example, in protests outside military bases, there are usually places where civil disobedience could trigger federal prosecution and places where the exact same conduct could trigger state or local prosecution. Often a few feet one way or another can have significantly different consequences.
People should absolutely be advised of four areas of concern over and above the possibility of a conviction.
First, people who have citizenship issues should be advised they risk much more serious consequences than citizens. Lawyers should insist that non-citizens consult with a specialist in immigration law before committing to engage in civil disobedience.
Second, people considering risking arrest should be advised that arrests for misdemeanors or felonies are likely to come up in the future if the person applies for professional educational or job opportunities. This is not just a concern for lawyers and doctors, but also for teachers, nurses, social workers, security guards, hairdressers, and many other professions that require licensing. There is rarely a blanket exclusion of people who have been arrested or convicted of nonviolent civil disobedience, but it will come up, and people should be prepared to explain their actions.
Third, people who are considering risking arrest should be strongly advised not to carry any weapons or drugs on their person. A small pocketknife can turn a simple trespassing charge into something more serious. Likewise, prescription medicines should not be carried unless they are in a pharmacy container that has the protester’s name on it.
Fourth, people risking arrest should be advised that there is a small chance that the authorities might seek restitution for any workplace stoppages or other costs incurred as a result of the protest.
There are lots of resources online for people considering civil disobedience. ACT UP has published civil disobedience training and guidelines (tinyurl.com/2yx7x). 350.org provides online training (tinyurl.com/yacxxbou). The New England Nonviolence Trainers Network shares much information on this (tinyurl.com/y6us2uov), as does Organizing for Power, Organizing for Change (tinyurl.com/y793ep7m), the Civil Liberties Defense Center (tinyurl.com/yawp8ehd), and the American Civil Liberties Union (tinyurl.com/huxy32o).
Representing People in Civil Disobedience Cases
The civil disobedience defense lawyer must be willing to be go outside her comfort zone in many of these cases. These are often not ordinary criminal defense cases. People who engage in civil disobedience often have goals that do not prioritize a finding of not guilty. They are often more interested in having their say and telling the truth than having their case dismissed. Some want court over as soon as possible and want to minimize the consequences. Others do not. Listen and find out who wants to do what.
Lawyers who represent people arrested for civil disobedience may be asked by clients for basic criminal defense, or they may be asked by the clients to help create a more innovative defense. Basic criminal defense in civil disobedience cases relies on the tools of the criminal defense bar, but there are several other ways to approach defense of a person engaged in civil disobedience.
One way is to consider advancing the necessity defense, which says essentially the defendant needed to break a small law in order to prevent a larger harm. If granted, this defense can allow the introduction of evidence of the greater harm the defendant was protesting against. The necessity defense has been raised successfully in some states. A recent decision by a trial judge in Minnesota, for example, allowed climate activists to present evidence to the jury on climate change, a decision now on appeal (tinyurl.com/ybbxzer6). More than 100 law professors signed an amicus supporting the trial court decision (tinyurl.com/ycragzos).
Another defense that defendants have raised is international law. These arguments begin with the premise that Article VI of the U.S. Constitution upholds treaties as “the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Defendants then cite the international law or treaty that protects the environment or bans nuclear weapons or outlaws racism as part of their defense for the resistance they were engaged in.
Another way is to raise the Nuremberg defense, which argues the defendant had to refuse to obey the law because there is a responsibility imposed on individuals to prevent massive crimes committed by the government, such as war and the stockpiling of nuclear weapons. The example would be Nazi Germany, where the defense of “just following orders” was deemed insufficient as a matter of law for individuals.
Others arrested on government property argue that the First Amendment protects the right to assemble in government offices to petition the government, though this is an uphill battle.
Some defendants choose to represent themselves and ask the lawyer to act as standby counsel. ABA Criminal Justice Standard 4 – 3.9 states:
Obligations of Hybrid and Standby Counsel. (a) Defense counsel whose duty is to actively assist a pro se accused should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case. (b) Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed to do so by the court.
In my experience, good beginning advice for the lawyer working with civil disobedience clients is not to say, “No, you cannot do that.” These are people who have already decided to disobey someone’s orders. They are not likely to appreciate taking orders from their lawyers.
When civil disobedience defendants ask questions about unusual ways of being in court or presenting their story, it is best not to say, “You cannot do that in court.” Do say, “If you do that, these are the possible outcomes.” Many people who engage in civil disobedience have some very creative ideas about trials and how to act in the courtroom. The lawyer’s job is to educate people about how the case will likely proceed and advise people of the consequences of their choices.
Be prepared to spend a lot of time listening to ideas, answering questions, and explaining the basics of trial procedure, evidence, and sentencing. The people who engage in civil disobedience are usually skeptical of the system, and rightfully so. They are also probably skeptical about you as well until you earn their trust. You will earn their trust, but as in all relationships, it takes time.
Do be clear. Do not use legalese. Take the time to explain what is next, who the people in the court will be, where people will sit, how law enforcement will act, and so on.
Prepare written question-and-answer materials if there is a big group involved. Find out the questions people are asking and prepare short, clear answers.
Assume that everything you say or write will be made public at some point. People who complained about surveillance of e-mail and phone calls used to be called paranoid. Now they are called people. Act accordingly. Make sure you write every e-mail in such a way that you will be comfortable if it is published on the Internet.
Do not always be the one who talks to the media. Do let the defendant speak for herself as much as possible. If the defendant is in jail, let supporters speak as much as possible. Media attention is important to educate about the cause. Let the people who were working on the cause before you arrived and who will be working on it after you leave speak about the cause.
Help people who want to be creative at sentencing. Judges sometimes are flexible in hearing out people whom they have convicted but are beginning to understand. For example, one convicted defendant urged a judge not to send him to a jail without walls. The judge asked why not? “Because,” he said, “I will walk away. I refuse to build walls in my mind.” And you would not think a judge would let a convicted person sing at his sentencing, but it happened.
Working with people who question authority can be liberating. These clients can push lawyers to look at the law and the rules of courts in new and creative ways.
We should remember that 100 years ago much of what we now know as clearly unjust law and conduct was totally legal. Clients who question the way things are today can help us start to think about what people 100 years from now will be looking back upon and wondering, “Why did those people in 2018 not see that was unjust?”