§ 22.03 CIVIL DISOBEDIENCE

• Jurisdiction: United States

§ 22.03. Civil Disobedience⁴³

"Civil disobedience" may be defined as a nonviolent act, publicly performed and deliberately unlawful, that has as its purpose to protest a law, government policy, or action of a private body whose conduct has serious public consequences.⁴⁴

Civil disobedience may be direct or indirect. Direct civil disobedience involves protesting a particular law by breaking it or "by preventing the execution of that law in a specific instance."⁴⁵ For example, in the early 1960s, civil rights demonstrators "sat-in" all-white lunch counters in the South to protest, and ultimately to prove the unconstitutionality, of segregationist laws that barred African-Americans.

In contrast, indirect civil disobedience involves the violation of a law that is not the object of the protest. In this category, for example, are protesters who violate a trespass statute, although they have no objection to trespass laws, in order to express their opposition to the construction of a nuclear power plant,⁴⁶ or the performance of abortions in a nearby clinic,⁴⁷ or who sit in a Congressman's office in order to protest governmental actions in a foreign country.⁴⁸

Do the facts alleged in a typical indirect civil disobedience case state a credible claim of necessity, so as to justify a jury instruction on the defense? The issue usually arises prior to trial as part of a prosecutor's motion "in limine" ("on or at the threshold") to bar evidence on the necessity claim, or during trial when the prosecutor objects to introduction of such evidence. If the prosecutor's motion or objection is granted, which it nearly always is,⁴⁹ the defendant is left without any realistic basis to avoid conviction. Therefore, on appeal from the conviction, the defendant will argue that he was improperly denied the opportunity to raise the necessity claim with the jury.

Appellate courts consistently reject the claim that a defendant is entitled to assert a necessity defense in cases of indirect civil disobedience.⁵⁰ Indeed, one federal circuit court has ruled that the defense is unavailable as a matter of law in all such cases.⁵¹ Typically, the requisites of a traditional necessity claim are lacking in indirect civil disobedience cases: the harm to be avoided is not imminent; the protest cannot directly abate the danger; protesters have legal options, such as the ballot box, to seek change in the disputed policy; and the legislature (or, in the case of issues such as abortion, the judiciary)...