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Posts Tagged ‘civil disobedience’

The Pledge of Resistance and the “Sofagate” Action

Ronald Reagan brought with him to the White House an extreme anti-communism and intense hostility to the government of Nicaragua, which was led by revolutionaries who had recently ousted a US-backed dictator. Soon the administration was organizing, funding, and training a band of counter-revolutionaries – the “contras” – who waged terrorist attacks across the border from bases in Honduras and Costa Rica. An outright US invasion seemed like a real possibility.

To protest and deter an invasion, US activists organized the “Pledge of Resistance,” a campaign which promised massive civil disobedience in the event of a US invasion, beginning in 1984. Across the country, “affinity groups” of activists organized, attended nonviolent action training sessions, and prepared to occupy Congressional offices. By publicizing their activities, they sought to influence Congress to restrain the administration’s bellicose agenda.

Perhaps it worked; there was no US invasion. But despite evidence of flagrant human rights abuses committed by the contras, US support for them continued. The CIA even mined Nicaragua’s harbors. As the suffering of the Nicaraguan people deepened, the Pledge of Resistance decided to change its plans. Instead of waiting for a US invasion, the call went out for affinity groups to begin acts of civil disobedience. Many of the actions were based on occupations of Congressional offices.

Planning the Action

In New Hampshire the Pledge of Resistance was coordinated by Witness for Peace and AFSC, working through networks of locally based peace and solidarity groups. In the spring of 1985, several affinity groups demonstrated at the offices of New Hampshire’s Congressional delegation.

In addition to an active role in coordination and training, I was part of a local Concord affinity group made up largely of activists associated with the Concord Committee on Central America. I have a clear memory of our nonviolent training session, held at the office of Womankind Counseling, which was then on Warren Street. It was our plan to occupy the office of Senator Warren Rudman, who had served as the state’s Attorney General before seeking office as a Senator. He had a reputation as a moderate, but supported the administration’s policies in Central America.  (His office was in the building at the corner of N. Main and Centre Streets in Concord, in the space where the Prescription Center now runs its medical supplies and equipment operation.)

As we debriefed the roleplay of a scenario in which we occupied Rudman’s local office and refused to leave, we asked ourselves some critical questions. What was our demand? Did we want to meet with the Senator? Refuse to leave until we talked to him on the phone? Shut down the office to say “no business as usual” should be allowed until he changed his tune on support for the contras?

Through discussion we recognized that while we weren’t opposed to meeting with the Senator or talking with him on the phone, dialogue would not by itself address our concerns. Likewise, assuming we might be allowed to stay throughout the normal business day but would be ejected at the close of office hours, we agreed that this, too, did not really meet our concerns. Neither did we see much point in simply being disruptive. Instead, we agreed that what we really wanted to do was communicate to the Senator the depth of our concerns, and that this would be better accomplished through persistence than short-term disruption.

Action and Arrests

If my memory serves, we delivered to the Senator a letter explaining that we would be having individuals sitting silently, by themselves, in the waiting area of his office for two hours each morning, and two hours each afternoon, as an expression of our concerns. We all signed up for shifts and began our visits on Thursday, May 16, 1985, when Don Booth took the morning shift and Marcia Freeman took the afternoon one. The pattern of two people a day for two hours each continued the next day and every weekday of the week that followed. While we sat on the sofa inside the doorway, members of our group read books and articles about Nicaragua and US interventionism, wrote letters to the Senator, and sat in silent reflection.

At the end of the second week, we were handed a letter from the Senator informing us he would no longer allow us to continue. Sitting near the reception desk, he said, we were able to overhear conversations his staff were having with constituents about Social Security checks, veterans benefits, and other issues. “It is simply impossible to treat constituent inquiries in a confidential manner when a protester is sitting in the office in a position to overhear private conversations,” he wrote.

“Although I appreciate your effort to conduct your demonstration in a manner which avoids disruption of business at the Concord office,” the Senator continued, “I have become convinced that the present situation is unworkable. Therefore, in fairness to other constituents who may wish to use the Concord office, I must ask you to end your sit-in demonstration.”

We called a meeting, agreed it was not our intent to disrupt constituent services, but that we would not suspend our action. After all, anyone in the waiting area would pose the problem Rudman had identified. In a letter we drafted, we informed the Senator that we understood his discomfort about the effect of our presence on office operations. “We have not thought about our presence of concern as a protest demonstration,” we wrote, “but as a simple statement of our awareness and caring.”

“It is important for us to continue,” our letter went on. “We are sure that US administration policies in Central America will have disastrous effects for people here as well as for people in Central America, and we want to express that concern by our presence.”

“We do not need to be in the office for half of each working day, as we were last week. Our concern can be expressed in one hour a day,” we informed him, adding some specific policy recommendations with regard to ending support for the contras, blocking military aid to Guatemala, and support for a regional peace agreement then under discussion.

The following week, on Wednesday, May 29, we delivered our letter and began again. Five volunteers, one a day, entered the office, took up our position on the waiting area sofa, and were told that if we did not leave we would be arrested. When we each politely said we intended to stay, police were called and we were each taken to the Concord Police Station for booking on charges of criminal trespass.

From the Office to the Courts

At Concord District Court four months later, we had the chance to argue that what we were doing was well within our rights to peacefully petition the government for redress of grievances. One member, Dick Duckoff, who hired a lawyer, succeeded in getting his charge dismissed. The other four, who chose to represent ourselves and were tried by a different judge, were all found guilty. Don Booth, Meg Grace, and I decided to appeal to Superior Court, where we would have a trial by jury. Stacey Baston decided not to appeal and went to jail.

Don secured representation from the NH ACLU. Meg had a public defender. I continued to represent myself. Rudman, the former Attorney General, was taking so much interest in the case that the city and county attorneys were apparently not of sufficiently high caliber to prosecute a handful of pacifists charged with misdemeanor offenses. Instead, Assistant Attorney Generals, who spent most of their time on homicide cases and other serious felonies, were assigned to the case. Rudman also arranged for legal counsel from the US Senate staff to help out.

My own memories of the Superior Court proceedings are pretty fuzzy, but the order issued by Judge George Manias on January 3, 1986, referred to hearings held on three days in mid-December. The State filed motions to exclude evidence of the office manager’s reasons for having us arrested, wanting instead to have the trial consider only whether the facts met the standards for criminal trespass. The State tried to consolidate the three cases into one, to which we objected. Don’s lawyer filed three motions to dismiss, including one based on constitutional rights, one claiming the trespass statute was overbroad, and one “on grounds of collateral estoppel.”

Judge Manias did not take a long time to rule that what we had been doing was in fact protected by the First Amendment protections of free speech and the right to petition. The prosecution argument that we were invading a private office had no validity, he ruled. We had been “licensed and privileged” to enter the Senator’s office. That’s exactly what it’s there for, and that’s why it was located in a prominent downtown location, the judge observed.

“At all times pertinent to this matter,” Judge Manias wrote, “the Defendants remained silently sitting on the Senator’s couch and did not carry with them any placards or materials that would visibly disrupt the office, nor did they engage in any activity such as shouting, yelling, or speaking out loud that would disrupt the office.” The charges were dismissed on January 3, 1986. The NH Supreme Court later refused to consider an appeal filed by the State.

Together with other demonstrations taking place during the same period, the action was covered amply in the local press. In fact, I was being interviewed by a Concord Monitor reporter at the time of my arrest.

Lessons Learned

Looking back with thirty years hindsight, I can still draw out some of the lessons of what we sometimes called the “sofagate action.”

  • Be thoughtful about your demands. You might get what you ask for and discover that really wasn’t what you wanted. In this case, what we wanted was to communicate with the Senator, not just to talk with him, and not just to get arrested.
  • Nonviolent action training offers opportunities to test out action scenarios in role-play exercises. We can adjust our plans based on the experiences we share.
  • It is possible to conduct a high quality action with a small number of people.
  • The courtroom can be treated as an extension of the action. Look for opportunities to continue to raise the issues which motivated the act of civil disobedience in the first place.
  • What may start out as a short-term commitment can extend into days, weeks, and longer when hearings, trials, and appeals are considered, and that’s not even counting the possibility of jail time.
  • But the lengthy time between arrest and trial, and the even longer time if a conviction is appealed to a higher court, can diminish enthusiasm. (In another civil disobedience action I organized, the gap between arrest and ultimate conviction was so long that our lawyer and one of our members had time for heart surgery, a second member had a hysterectomy, and a third had a baby.) Life goes on while we are waiting for justice. In this case, we did not return to Rudman’s office after the ruling was issued. (And by the way, the Senator re-arranged his waiting area.)

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The Occupy New Hampshire members ejected from Manchester’s Veterans Park on October 19, 2011 finally had their say before the New Hampshire Supreme Court yesterday.  Represented by Larry Vogelman on behalf of the NH Civil Liberties Union, the 14 Occupiers argued their rights to free speech and assembly trump the City of Manchester’s municipal ordinance establishing a curfew in public parks and furthermore that the definition of free speech in the state’s constitution offers a higher level of protection than does the First Amendment to the US Constitution.  

“I am privileged to represent the appellants in this case and through them the 99%,”nhsc 3-5-14 013 Vogelman began, and set out to lay out the rationale for the case.  He didn’t get far before he was interrupted.  “The State argues that there was no unifying message” of the protestors, asserted Justice Carol Ann Conboy.  Vogelman replied that the Occupiers were a diverse lot with a variety of grievances, but that they agreed it was possible to organize a society based on mutual respect and consensual decision-making.  And that required a 24-hour a day presence in the public park.

By picking up litter, restricting the use of drugs and alcohol, sharing food and shelter with people who were homeless, and working out their differences through discussion, the Occupiers created a harmonious spirit in Manchester’s parks that even reduced the need for police patrols during their short encampment, Vogelman explained. 

The attorney did not challenge the notion that the State has the right to regulate time, place, and manner of assembly and speech.  But the State still would need a compelling reason for the curfew to trump the free speech and assembly provisions of the New Hampshire Constitution.

The key provisions are Articles 22 and 32 of the NH Bill of Rights.

Art. 22.  Free Speech; Liberty of the Press

Free speech and liberty of the press are essential to the security of freedom in a state.  They ought, therefore, to be inviolably preserved.

Art. 32. Rights of Assembly, Instruction, and Petition

The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.

The contrast between Article 22 and the US Constitution’s First Amendment is fundamental to the legal point at issue.  Where the federal document says the government cannot itself abridge free speech, the state’s founding document gives the statenhsc 3-5-14 037 the obligation to actively protect it.  At least that’s what the words say, and Vogelman suggested that’s the first place to look to understand the meaning of a law.  

The State’s representative, Attorney Lisa Wolford from the Criminal Bureau of the Attorney General’s office, made the curious argument that the encampment was not speech at all, but instead was merely “facilitative conduct.”  The Justices did not seem to buy this argument.  Justice Hicks asked if civil rights marches had been “facilitative conduct” rather than speech, with a clear implication that he didn’t think so.  Justice Conboy even noted that the Occupiers had “a message that could not be conveyed” without a round the clock presence. 

Wolford pressed on with arguments challenging the notion that the protests nhsc 3-5-14 032 represented speech deserving of constitutional protection.  “Their problem was sort of amorphous,” she said.  “The core message was not the kind of crystallized symbolic message that you can communicate by a group of tents being in the park overnight.” 

Justice Conboy, at least, had a different understanding.  The purpose of the encampment, she said, was “to demonstrate and model a democratic and transparent government.  That’s the message.”  

The Justice may have understood better than the State’s representative what Occupy was trying to say.  That doesn’t mean she will agree with the legal case made by Larry Vogelman and the NH CLU.   A decision could be months away.   

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“The criminal laws cannot be used to suppress this revolution”

My acquaintance with New Hampshire’s Constitution began while I was incarcerated in the National Guard armory in Concord following my arrest – and that of 1414 others – at the Seabrook nuclear plant construction site in 1977. As I recall, someone passed out copies of a blue-covered booklet containing the story and text of the state’s foundation document, and said “check out Article Ten of the Bill of Rights.”

Article Ten, adopted in 1784, describes the “Right to Revolution” as follows:

Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

By definition, revolution takes place outside the law, and this provision seems to be a statement of political philosophy more than a principle of governance. But Guy Chichester used it successfully before a jury following his 1990 arrest for chainsawing down a Seabrook Station evacuation siren pole.

I made reference to Article Ten in a pre-sentencing statement before Judge William Lyons in Manchester District Court on May 17, 1999. I was then a member of a dangerous gang dubbed “the Footlocker Eight,” on trial for criminal trespass after committing the act of distributing anti-sweatshop leaflets inside the Mall of New Hampshire.

Citing the Constitution, I said “It is not only our right as citizens to assemble and speak about the common good, it is our duty as citizens of New Hampshire to actively resist oppression.”

My statement to the Judge also referred to Article 22, which states,

“Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved,”

and Article 32, which asserts

“The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.”

Now, Barbara Keshen, staff attorney for the NH Civil Liberties Union, is citing the same provisions of the New Hampshire Constitution in an elegant motion to dismiss charges against fifteen people cited with trespass and curfew violation charges  stemming from Occupy New Hampshire’s encampment at Manchester’s Veterans Park last fall.

The root of Keshen’s argument is that protection for political speech trumps the city’s curfew, which prohibits people from being in Veterans Park between 11 pm and 7 am. Therefore, police had no right to arrest the Occupy protesters, whose presence in the park was clearly political in nature. And while the First Amendment to the US Constitution merely says the government shall not interfere with speech, “our constitution requires that the government act affirmatively to safeguard free speech,” she argued.

“Our constitution consciously ties free speech to a free state. It requires the government not just to refrain from abridging free speech, but to inviolably preserve free speech,” Keshen said.

Keshen goes further, and asserts that the “peaceful and revolutionary activity” in which the protesters were engaged is protected by Article Ten. “The criminal laws cannot be used to suppress this revolution,” states the Motion to Dismiss.

Unlike the Guy Chichester case, the audience for this legal argument is not a jury. It is the same Judge Lyons, still presiding at Manchester District Court 13 years after he found the Footlocker Eight guilty as charged.

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