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Posts Tagged ‘civil disobedience’

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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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