Criminal Practice — Constitutional – Free Speech – General Assembly Hallway – Subject Matter Jurisdiction – Statement of Charges

Since the General Assembly’s visitor rules are content-neutral and are reasonable “time, place, and manner” restrictions, defendant’s First Amendment rights were not violated when he was charged with second-degree trespass after he and his fellow protestors refused to lower their noise level in halls of the General Assembly.

We find no error in defendant’s conviction for second-degree trespass.

Jurisdiction

Our superior courts do not have original jurisdiction to try a misdemeanor charged in a statement of charges. However, in this case, a grand jury made a presentment to the district attorney, which was followed by an indictment. Nevertheless, prior to defendant’s trial in superior court, the prosecutor substituted a statement of charges for the indictment. Under State v. Capps, 374 N.C. 621, 843 S.E.2d 167 (2020), the statement of charges can be treated as an amendment to the indictment.

Since the only difference between the indictment and the statement of charges was that the former described the premises in question as those “of the North Carolina General Assembly” while the latter described the premises as those “of the State of North Carolina,” the amendment was permissible.

First Amendment

Contrary to defendant’s argument, this is not a case about free speech—it is a case about loud speech.  While protesting health care policy, defendant led protesters through the halls of the General Assembly, chanting loudly. After complaints from legislative staff, the General Assembly’s police chief told protesters to lower their noise level or face arrest. The protesters did not quiet down, and they were arrested.

The General Assembly’s visitor rules are content-neutral. Even if defendant’s First Amendment rights were implicated, they were not violated. The visitor rules are reasonable “time, place, and manner” restrictions.

The interior of the General Assembly is not an unlimited public forum. While citizens are free to visit the General Assembly and communicate with members and staff, the government may prohibit loud, boisterous conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.

The legislative rules serve a significant interest of limiting loud disruptions, and defendant has various other channels to make his concerns known and to otherwise engage in protests of legislative policies. Accordingly, we conclude that defendant’s First Amendment rights were not violated by the application of the legislative rules that support his conviction.

No error.

Concurrence

(Inman, J.): I concur in the result of the majority’s First Amendment ruling.

A law or regulation that principally concerns itself with conduct may also burden speech and be subject to First Amendment protections.

The General Assembly’s visitor rule places at least an incidental burden on speech, as it explicitly includes “singing, clapping, shouting, [and] playing instruments” as “nonexclusive examples of behaviors that may disturb the General Assembly.” If a city noise ordinance that forbids deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities, Grayned v. City of Rockford, 408 U.S. 104 (1972), is subject to intermediate First Amendment scrutiny as a time, place, and manner restriction on expression, it is hard to discern how the visitor rule is not also a time, place, and manner restriction subject to the same level of First Amendment review.

The General Assembly allows any and all speech that falls within a content-neutral time, place and manner restriction. As a result, the hallway where defendant was arrested qualifies as a designated public forum.

Nevertheless, the visitor rule is a reasonable time, place and manner restriction that survives intermediate judicial review.

I also conclude that defendant’s prosecution did not violate his rights under N.C. Const. art. I, § 12 “to instruct [his] representatives, and to apply to the General Assembly for redress of grievances.” To the extent that this argument is encompassed by defendant’s underlying First Amendment challenge, it fails alongside that as-applied claim.

State v. Barber (Lawyers Weekly No. 011-258-21, 27 pp.) (Chris Dillon, J.) (Lucy Inman, J., concurring in part & concurring in result in part) Appealed from Wake County Superior Court (Stephen Futrell, J.) Matthew Tulchin for the state; Scott Holmes, Irving Joyner and Malcolm Ray Hunter for defendant. 2021-NCCOA-695