On Protesting: When is a Crime not a Crime?

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Police watch as young African Americans are taken from the Natchez City Auditorium in October 1965. AP photo. Used with permission. Photo from The Parchman Ordeal: 1965 Natchez Civil Rights Injustice, by authors G. Mark LaFrancis, Robert Morgan, and Darrell White.

Reader, you know us. There’s nothing we love more on Crime Capsule than the story of a good solid crime. Not because we condone them, but because we’re fascinated by them: public officials turned frightfully corrupt. Heists worthy of Bonnie and Clyde. Bizarre murders, bootlegging (of course), and maybe best of all, the unsolved cases that continue to tickle our brain cells, always begging just one more question.  

According to legal codes, crimes such as these tend to be cut-and-dried: somebody did something terrible to someone else (or something else), and after working out the details, all that remains is to bring them to justice. But as we’ve followed recent events following the death of George Floyd (and Breonna Taylor, and so many others), the protests that have swept the nation have brought with them not just sweeping calls for reform to our justice system but deep-seated interrogations of what justice even is.

It’s a question worth asking. Protest in its criminalized form becomes known as civil disobedience, yet built into the very nature of civil disobedience is a paradox aimed at the heart of the legal system. In a country ruled by laws, not by tyrants, how do we account for times when the populace rejects the law as it stands in order to challenge, reform, or even abolish that law? What does it look like when a citizen willingly jailed for civil disobedience rejects the authority of the court that holds and tries them?

In other words, can they be called a criminal?

From the very beginnings of our country, protest has been a part of who we are. It’s no exaggeration to say that it’s written into the First Amendment to our Constitution. Yet even before the Constitution was even imagined, the Boston Tea Party had become one of the first organized protests in our history, taught now to every schoolchild in America. That protest could not have been more successful: it ultimately led to open rebellion and to the founding of our nation. Subsequent events that have reshaped the American political landscape—the abolitionist movement, the suffrage movement, different anti-war movements, and of course, the civil rights movement—have all used protest to powerful ways. It’s in our DNA.

Indeed, for many who are branded as criminals as a result of civil disobedience, the brand becomes a badge of honor, a battle scar from a greater struggle. In recent months we’ve looked at those who survived unjust imprisonment in Mississippi and Alabama, but beyond our shores, places such as Robben Island in South Africa now honor prisoners sentenced for daring to challenge the ruling regime: here, political prisoners shared knowledge in what was known as “Robben Island University,” where the unofficial motto was “Each One, Teach One.” Nobility, dignity, solidarity: attributes of hardened criminals? We think not.

Related: History of Protest in D.C. (via Yesterday’s America)

Are all crimes subject to such negotiation or reinterpretation? Of course not. Arson is still arson, and kidnapping is still kidnapping, and our legal definitions of acts such as these remain foundational to our society. But civil disobedience stands apart: in its effort to reshape society (rather than, say, just make off with the hooch), it challenges the known boundaries of our typical definitions of crime, and forces a reckoning not with the act itself—most often marching, carrying signs, and exercising our Constitutional right to assembly—but with the law that defines the act as criminal. Perhaps most important to remember is that such a challenge is uniquely democratic: protest is enabled by democracy in ways that monarchy, despotism, or totalitarianism hardly ever allow. Civil disobedience says: we—we as a people—are better than this.

All this is to say: if you’re heading out to any protests in the coming days or weeks, regardless of where you spend the night thereafter, we here at Crime Capsule urge you to (1) stay safe, (2) know your rights, (3) take care of others while on the march, and (4) exercise your best judgment always. Our country isn’t perfect—indeed, as Americans labor towards a more perfect union, America’s best description remains as a work-in-progress. Hearts can change, and laws can too.

But bootlegging? Bootlegging is forever.

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