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EDITORIAL

Our Opinion: Misguided bill could make some criticism a crime

Posted on March 24, 2021

OpinionEditorials

Stock photo | Pixabay

Some North Carolina lawmakers want public activism at government meetings to be a high-stakes affair with the threat of arrest hanging in the balance. 

Sen. Amy Galey, R-Alamance, introduced a Tuesday bill to increase the penalty for disrupting an open meeting. Senate Bill 335 doesn’t just seek harsher punishment, however. It would create a vague, definitionless crime and give local officials sweeping power to retaliate against their critics. 

“The current law is confusing,” Galey said in a news release. “It is based on trespass law and focuses on whether a person leaves a public meeting when requested. This new law deals with the conduct that disrupted the public meeting.” 

Attendees who interrupt board discussion or shout over speakers generally receive a warning, and if the behavior continues, the official chairing a meeting asks law enforcement officers to escort the individual out. 

Those who follow instructions face no further consequences, while people who refuse to leave can be charged with trespassing and resisting a public officer, both Class 2 misdemeanors. 

SB 335 adds another element — “engag(ing) in conduct which disturbs the peace or order of an official meeting of a public body” — to North Carolina’s disorderly conduct statute. Violators could be charged with a Class 1 misdemeanor for a first offense, a Class I felony for a second offense and a Class H felony for a third or subsequent offense. 

Under North Carolina’s structured sentencing law, the penalty for Class 1 and Class 2 misdemeanors is nearly identical — an offender with no prior convictions can receive 1-30 days of community punishment for Class 2 and 1-45 days for Class 1. The higher-grade misdemeanor allows judges to consider jail time for offenders with one to four prior convictions. 

The negligible difference between first-offense penalties undercuts the bill’s stated purpose. Instead of ensuring orderly meetings, SB 335 is likely to intimidate government critics into silence. 

In its 23 sparse lines, the bill fails to define what constitutes conduct that “disturbs the peace or order of an official meeting.” Galey is an attorney, as is cosponsor Sen. Warren Daniel, R-Burke. Surely they understand that crimes ought to be well defined. The lack of specificity appears intentional, as it leaves board chairs free to target any utterance or action they dislike. 

Galey, who served as the Alamance County Board of Commissioners’ chairwoman before joining the General Assembly this year and presided over a November meeting where five protesters were arrested on questionable grounds, noted in her news release that speakers who attend public meetings are often upset and said “wide latitude should be given for them to express themselves.” 

But SB 335 provides precisely zero latitude to citizen critics and a frightening amount of authority to the subjects of their criticism. Sloppily written criminal statutes beg for abuses of discretion, and this too-brief bill seems engineered to produce them. 

It’s telling that the new crime would trigger an already nebulous charge that’s often misapplied to punish critics. New York criminal defense lawyer Michael Kramer calls disorderly conduct “the criminal charge most abused by police.” It’s been the basis of innumerable “contempt of cop” arrests where people are hauled off to jail for being mouthy, a violation of the First Amendment.  

While genuine disruptions that prevent others from speaking don’t enjoy constitutional protection, free speech rights require government to tolerate some expression that may be annoying or inconvenient. Case law refers specifically to “fleeting boos,” suggesting that a single out-of-order comment or a sarcastic rejoinder muttered under one’s breath qualifies as protected speech. 

Board chairs vary widely in their reasonableness and tolerance for dissent. Middlesex Mayor Lu Harvey Lewis ordered police to eject a speaker from a town meeting in May 2017 merely because he didn’t like what she said during time reserved for public comment. We believe that obvious overreaction was unconstitutional. 

If Galey’s bill had been on the books, Lewis could have compelled that speaker’s arrest merely by labeling her remarks a “disturbance” and convincing a police officer on the town payroll to unholster the cuffs. 

City and county governments will be on a collision course with the First Amendment if legislators green-light this needless bill. We urge the General Assembly to reject it.   

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