Judge: Lawmakers go too far in limiting legislative protests
Posted June 13, 2014
Raleigh, N.C. — A Superior Court judge on Friday issued a restraining order against some of the rules lawmakers adopted regarding demonstrations in the Legislative Building, ruling they are too broad to be enforced.
While unlikely that the restraining order will be drafted, signed and served by next Monday, when a large-scale protest at the General Assembly is planned, the fact that the judge announced his decision in open court makes that paperwork simply a formality.
The state chapter of the NAACP and five protesters in the "Moral Monday" movement filed suit Wednesday to block enforcement of the building rules, which lawmakers hastily rewrote in May before the Moral Monday demonstrations resumed for a second year.
The changes came after the acquittal of some of the more than 900 people arrested last summer during the weekly protests of the Republican-led General Assembly's legislative agenda. The new rules state that protesters cannot make enough noise to interfere with conversation, and they allow General Assembly Police officers to order anyone to leave the building if they think those people pose an "imminent threat" of a disturbance.
"We're in a country born out of protest, but in this General Assembly, they want to shut it down," said Irving Joyner, an attorney for the protesters.
Joyner argued that the Legislative Building is where North Carolina residents are allowed, under the state constitution, to "interact with their legislators and to make their grievances known." The rules are "vague and overbroad" and have a "chilling effect" on people trying to exercise their rights, he said.
Both he and fellow attorney Scott Holmes pointed out the different standard between "disturbing" and "disruption." Anything that disrupts the legislature could legally be stopped, but it's left to the discretion of police as to whether something is disturbing, they said.
"There was no measurable evidence there was any actual disruption," Holmes said of the protests.
Holmes also questioned the authority of the Legislative Services Commission, a panel of lawmakers that drafted the new rules. The rules aren't created by statute or under the Administrative Procedures Act, he said, and they exist only when legislative leaders choose to enforce them.
"It's a constitutional mess," he said, noting that top lawmakers were invoking powers of the executive branch to create the rules and use their own police force to enforce them. "These are unconstitutional rules promulgated by an unconstitutional entity."
Special Deputy Attorney General Amar Majmunder said that argument was ludicrous, noting the General Assembly can make its own rules for the safe operation of its own building.
The rules aren't a form of prior restraint, Majmunder said, noting anyone is allowed into the building and is asked to quiet down and then warned at least once more if they continue to cause a disturbance before police even contemplate arresting them.
"They have three strikes before we even get to the doomsday scenario described by plaintiffs' attorneys," he said.
Judge Carl Fox asked whether police were prepared to arrest the hordes of schoolchildren who regularly visit the Legislative Building on field trips, noting they are usually much louder than any organized demonstration.
Majmunder replied that teachers usually get their students in line by the first warning, adding that youths understand the importance of not disturbing a workplace.
"Even kids understand that this is an important place, and we all have our right to be there and exchange ideas and learn from one another, but we don't have the right to disturb others," he said. "(The protesters) want this court to order that they can say and do anything, that there are no bounds – decency be damned."
Only 14 people have been arrested under the new rules, and they were involved in a sit-in in House Speaker Thom Tillis' office last month.
Fox ruled that the rules prohibiting demonstrations that interfere with conversations or protests that "create any impediment to others' free movement" are too vague, and he issued a restraining order against them. He also barred enforcement of a rule that allowed police to confiscate signs "used to disturb or used in a manner that will imminently disturb the General Assembly."
"We protect a lot of things that people write on signs," he said. "This goes a little farther than is necessary to protect the legislature."
The restraining order will run out in two weeks, and Fox said more evidence is needed in another hearing before any decision is made on whether other sections of the rules, such as restricting the time, place and manner of demonstrations, can be enforced.