Before pondering that one, consider the contemporary case of the six N.C. WARN folks arrested for trespassing, and later convicted by a jury, when they attempted to enter the Raleigh headquarters of CP&L with a complaint. The six, including N.C. WARN executive director Jim Warren, think CP&L's created a potential disaster by storing thousands of used nuclear fuel-rod assemblies in tightly packed water pools at its Shearon Harris power plant. Terrorists destroy the pools and boom, there goes North Carolina, the six fear.
Bottom line, they think there are safer waste-storage methods and want CP&L to use them. CP&L, so far, doesn't.
Thus the six headed for Raleigh one day in January 2001 with the well-publicized intention of confronting William Cavanaugh, corporate CEO, or in the alternative--since the chances of getting face time with Bill C. were slim--maybe taking up residence on the premises.
We say maybe because they never got to the premises. After a made-for-TV rally on the Fayetteville Mall, they were stopped in the lobby of the CP&L building, told to leave, and arrested when they didn't.
Trespassing? A jury thought so, as did two of the three N.C. Court of Appeals judges who reviewed the case. But the third, Judge Edward Greene, dissented, which (because the panel wasn't unanimous) brought the matter to the N.C. Supreme Court last week. One sticking point: CP&L doesn't own the lobby. It doesn't even own the building, though it occupies most of it; the lobby, however, opens onto a sandwich shop and other businesses that serve the public.
For that matter, CP&L is open to the public, too--it's a public utility, after all, meaning its "customers" don't have a lot of choice when it comes to buying electricity--and the record is clear that if you or I want to register a safety complaint, we're welcome during normal business hours.
But they weren't open to Warren et al., who were shown an arbitrary line in the lobby by a security person and told that if they crossed it en route to the elevators, they'd be trespassing. Raleigh cops made good his threat.
Justice Edward Brady, the newest member of the Supreme Court, wondered what would have happened if any of the six had said, "well, I'm not protesting any more, I just want to buy a sandwich." William Hart, arguing the state's case, said he thought that would have been OK. Really?
Lately we've seen federal marshals stop anti-war protestors from entering the Raleigh building that houses John Edwards' U.S. Senate office. They intended to sit-in. In a New York shopping mall, a place of public accommodation, a man was arrested for wearing an anti-war T-shirt. It was "potentially disruptive" to the mall's business, but he refused to remove it. In his case, the charge was quietly dropped, but so what? Being arrested for what you think--not for anything you've done--has that old "chilling effect" on our rights, doesn't it?
The Greensboro 4 weren't arrested. They stayed until the business closed because even in segregation days, neither Woolworth's nor the Greensboro police wanted to stand behind that whites-only policy in court. But perhaps they'd have been willing to stand behind a trespass law, neutral on its face, that allowed Woolworth's to turn away customers suspected of wanting to "disrupt" its business to make a political point.
When the N.C. WARN case went to trial, attention was focused on its e-mail to supporters that said the defendants would offer a "necessity defense"--i.e., they'd trespassed, but their cause justified the minor transgression of the law. The judge, given the e-mail by CP&L beforehand, was in a dither about not letting his courtroom be used for a show trial (his refusal to allow testimony about the safety danger is also an issue before the Supreme Court). He didn't notice that maybe the defendants hadn't trespassed in the first place.
But Judge Greene did notice, and so did several of the Supreme Court justices, notably the very conservative Justice Brady. Because as Brady said, "our decision will be used in 100 counties--we have trespass cases every day."
If the Supreme Court decision suggests that a property owner, though open for business, can decline to admit a customer whose unpopular political views might "disrupt" things or cause others to steer clear, how does that differ from saying we don't serve Muslims, or African Americans, or others whose presence is potentially "disruptive?"
Unpopular views are very unpopular these days, which is exactly when we need the Bill of Rights the most.
Justices, start your First Amendment engines.
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