Constitutional – First Amendment – Public-Forum Doctrine

The First Amendment protects Defendant’s silent display of a crude banner criticizing a county commissioner at a board meeting.

We vacated Defendant’s convictions for disrupting an official meeting and resisting a public officer.

Defendant appealed his convictions for disrupting an official meeting and resisting a public officer. He argued the First Amendment protects his silent display of a crude banner criticizing a county commissioner at a board meeting. We agreed. The First Amendment shielded his right to stand silently at the back of the boardroom with his vulgar banner during the public comment period. Because his arrest was unlawful, Defendant had the right to resist it without using excessive force. He used reasonable force.

Defendant raised three challenges to his convictions. First, he argued his arrest and conviction under North Carolina General Statute Section 143-318.17 for disrupting an official meeting violated his First Amendment rights. Second, he claimed he “had a right to resist an unlawful arrest” premised on a First Amendment violation. And third, he insisted insufficient evidence supports his conviction under North Carolina General Statute Section 14-223(a) for resisting a public officer because officers arrested him “immediately” when “the elevator door[s] opened,” denying him any “chance to get on the elevator.”

The First Amendment draws no distinction between refined political discourse and coarse personal attacks on elected officials. Defendant’s speech is protected. The Board’s rules didn’t prohibit displaying banners during public comment. Though one word was offensive, Defendant’s banner commented on the “efficient and effective administration of government” by critiquing the commissioner’s alleged “unprofessional” performance. His speech thus aligned with the forum’s stated purpose. Defendant’s removal failed the reasonableness test. He silently displayed a banner criticizing a commissioner’s job performance at the back of the boardroom—a banner that blocked no one’s view and caused no observable disruption to the proceedings. Removing him served no legitimate purpose of facilitating orderly public comment. Rather, it accomplished only one thing: censoring speech the officials found offensive. Even in a limited public forum, such censorship exceeds the constitutional bounds of reasonable regulation. We therefore vacated Defendant’s conviction under Section 143-318.17.

Finally, we turned to Defendant’s conviction for resisting a public officer under Section 14-223(a). The State does not dispute this right or argue that Defendant used force beyond what was “reasonably. . . necessary to prevent” his unlawful arrest. Instead, it assumed that the arrest was lawful and contended that sufficient evidence supports Defendant’s conviction. That assumption is wrong. We already concluded Defendant’s arrest was unlawful, and that the evidence taken in the light most favorable to the State does not show that he used force beyond what was reasonable in the circumstances. Defendant’s resistance was almost entirely verbal. The record contains no evidence that Defendant took any offensive physical action against the officers or used excessive force. Because his arrest violated the First Amendment, he had the right to resist it using reasonable force. He remained within those bounds. So we vacated Defendant’s conviction under Section 14-223(a).

Vacated.

State of North Carolina v. William J. Barthel (Lawyers’ Weekly No. 011-263-25, 30 pp.) (Donna Stroud, J.) Appealed from Avery County Superior Court (Gary M. Gavenus, J.) Attorney General Jeff Jackson, by Solicitor General Nicholas S. Brod, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Brandon Mayes, for defendant-appellant. North Carolina Court of Appeals