* Susan Tiefenbrun is an Associate Professor of Law at Thomas Jefferson School of Law in San Diego, California. This paper was presented at a Conference on The Right of Resistance on December l3, 2002 in Dijon, France at the University of Bourgogne School of Law. I would like to thank Dorothy Hampton and Debora Gerads of Thomas Jefferson School of Law for their assistance in the research of this paper. I also wish to thank Professor Bryan Wildenthal of Thomas Jefferson School of Law for reading and commenting on early drafts of this paper.
SUMMARY: ... A. History of the Spirit of Resistance and Revolution in the United States ... Jefferson's "spirit of resistance" refers to both the right of revolution and the right of civil disobedience. ... There are two kinds of civil disobedience practiced by Martin Luther King Jr.: one kind is protest in the form of a refusal to obey a law which the disobedient seeks to have overturned; this form of civil disobedience is protest against the law itself. ... Some consider civil disobedience to be a permissible form of dissent, protest, speech or expressive conduct, a last ditch effort to be used when the courts and Congress have failed to reform unjust law or failed to create necessary, legal protections for minorities. ... But in order to adduce a free-speech argument for civil disobedience, one must determine how far the protection of free speech really goes and whether the form of illegal protest in question is like other protected forms of communication: gestures, symbolic responses, and other nonverbal acts which are protected under the First Amendment of the Constitution. ... Professor Leslie Jacobs applies the traditional free speech clause model to civil disobedience and concludes that civil disobedience is not protected by the U.S. Constitution, even though she recognizes the important social value of civil disobedience. ... [*677]
A. History of the Spirit of Resistance and Revolution in the United States
The United States of America was founded on the principles of resistance and revolution. n1 Decades before the War of Independence, Americans in all the colonies protested unlawful acts of the British government. Colonists resisted British efforts to enforce the Stamp Act in l765. Henry David Thoreau stated that "all men recognize the right of revolution; that is, the right to refuse allegiance to and to resist the government, when its tyranny or its inefficiency are great and unendurable." n2 During the revolutionary period, "the right, the need, the absolute obligation to disobey legally constituted authority had become the universal cry." n3 Many of our founding fathers believed that civil disobedience, resistance, and revolution were inalienable rights, and they wrote these rights into the Declaration of [*678] Independence. One of the most famous founding fathers, Thomas Jefferson, asked rhetorically, "[And] what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance?" n4
Jefferson's "spirit of resistance" refers to both the right of revolution and the right of civil disobedience. Non-violent resistance is a compromise, a way to safely vent emotion about unjust laws, a middle ground between blind obedience to tyrannical rulers or unjust laws and outright revolution. n5 Before the American Revolution, the founding fathers reasoned that resistance to unlawful acts could not be deemed per se "illegal," but they also understood that resistance and revolution were not legally available to them within the judicial procedure for redress of grievances set up by the British government. n6 Even after the Revolution, the spirit of resistance continued and was particularly noticeable in Massachusetts, where throughout the l780s citizens organized committees and conventions to protest high taxes and to urge reform of the state constitution. n7 When the committees failed, the people turned to mob action and actually closed down the state courts in the famous Shays' Rebellion of l786-87. n8
Following the revolution, American leaders both accepted and feared the spirit of resistance. Thomas Jefferson, who never completely renounced the right of revolution, included the doctrine of nullification and implied threat of secession when writing the Virginia and Kentucky Resolutions. n9 Jefferson won his election to the Presidency of the United States in l800 partially on his continued belief in the right of revolution, even though he actually assumed an anti-revolutionary stance during his term of office. n10
Unlike Jefferson, Alexander Hamilton was very suspicious of the right of resistance and revolution by "the multitude, who have not a sufficient stock of reason and knowledge to guide them, for opposition to tyranny and oppression, very naturally leads them to a contempt [*679] and disregard of all authority ... and are apt more or less to run into anarchy." n11 Hamilton ultimately renounced the idea that people had the right to overthrow the central government. n12
After the Revolution, when mobs turned against the newborn American government, many American leaders began to question the appropriateness of the old "spirit of resistance." At this point in time, resistance clashed with the need for a stable, strong government in a new republic. n13 Upon the founding of the United States of America as one nation, even the radical Bostonian, Samuel Adams, once the most vocal proponent of resistance and revolution, n14 revised his views about the right to revolt. n15 He now saw the inherent dangers of too much resistance leading to a breakdown of the rule of law in society. n16 James Madison, who did not renounce the right of revolution and originally included it as one of the rights protected by the Bill of Rights, actually feared revolution. n17 And George Washington, the father of the United States, prayed that God "would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to government." n18
Among the founding fathers of the United States of America, Jefferson best typifies the duality inherent in the right of resistance and revolution. Jefferson believed rebellion was a protection of freedom, a "medicine necessary for the sound health of government." n19 Among the founding fathers, Thomas Jefferson was the least fearful of the right of resistance and revolution, and he supported populist rebellions like Shays' Rebellion and the effectiveness of a threat of rebellion like the Virginia and Kentucky Resolutions. n20 Jefferson was an ardent supporter of the French [*680] Revolution, and he maintained his support after the Terror and after his presidency. n21 Jefferson also continued to support the radical natural rights philosophy enunciated in the Declaration of Independence, and he implied in a letter to Edmund Randolph in l799 that the nation retains the right of revolution because it is the people's will "which creates or annihilates the organ which is to declare and announce it." n22 Jefferson is most remembered for his revolutionary statements: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants, and if the happiness of the mass of the people can be secured at the expense of a little tempest now and then, or even a little blood, it will be a precious purchase." n23 However, despite Jefferson's continued belief in the right of revolution, he was not willing to see the American constitutional system destroyed by rebellion and resistance. n24 Jefferson was suspicious of revolt by the masses or the mob, and ideally, Jeffersonian revolts probably would have been led by the natural aristocrats. n25 To resolve the tension between the right of resistance and the right to live in a safe, orderly system of government, Jefferson actually preferred the use of alternatives to revolution such as elections, amending threats of revolution, and partial rebellion. n26 Although Jefferson continued to talk in terms of real revolution, he actually used rebellion and the threat of revolution as a persuasive tool of reform. n27 Even though Jefferson "incorporated civil disobedience into the constitutional structure, he actually relied far more on limited rebellions that are short and contained rather than on the checks and balances of the constitutional system" for the preservation of minority rights. n28
In the eighteenth century, the French Revolution and its aftermath convinced Americans of the need to limit popular sovereignty in order to avoid the chaos and anarchy that consumed [*681] France after its Revolution. Everyone in the United States knew that after the French Revolution, France "groaned under the tyranny of the mob." n29 In France, government became anarchy, and violence replaced law and order. n30 The French drafted, ratified, and then abrogated constitutions with alarming frequency. n31 They formed illegal assemblies which usurped the powers of existing French legislatures. n32 The Americans looked at France and feared that popular sovereignty unbridled in the United States could lead to a similar state of chaos. The leaders in the United States sought to establish a balance between the right to dissent and the need to maintain a stable government. The right to revolution and rebellion became obsolete in this climate, and the right to resistance needed careful limitations.
B. Tensions Between Rights of Resistance and National Security and the Origins of a Constitutional Protection of Resistance
After the American War of Independence, American leaders sought to dampen the "spirit of resistance" by drafting and ratifying a new Constitution that created a stronger national government with the power to suppress unlawful resistance. n33 Article IV, Section 4 of the new Constitution granted the national government the power to protect the states "against domestic violence." n34 This power was used against the states to suppress uprisings in Pennsylvania in l794 and l799 when federal troops were sent in to stop the Whiskey Rebellion n35 and the Fries Rebellion. n36
[*682] A few of the founding fathers believed there was a need to defend the spirit of resistance, even in the new republic. Thomas Jefferson wrote that the "spirit of resistance" was "so valuable on certain occasions, that I wish it to be always kept alive." n37 This spirit of resistance survived after the Revolution in the form of popular sovereignty which gave the people a direct role in their government by allowing them to monitor their leaders and investigate abuses. n38 Defenders of popular sovereignty and the right of resistance pointed to the Declaration of Independence which, they reasoned, granted the people the right "to alter or abolish" their government whenever they deemed it expedient. n39 They argued that the Declaration of Independence empowered the people to exercise the right of resistance without the consent of their current government. n40
Espousing what would be termed today a theory of constitutional interpretation known as "original understanding" (sometimes referred to as "original intent"), defenders of popular sovereignty in the eighteenth century based their belief in the constitutional right of resistance on historical evidence. They argued that the manner in which the U.S. Constitution of l787 was drafted and ratified confirmed their belief that it is constitutionally legal for the people to abolish their existing government and build a new one. n41 Instead of merely revising the Articles of Confederation, which was the original plan, the framers proceeded to set up an entirely "new system of government." n42 Those who drafted the Constitution of l787 defied the instructions of Congress and the amendment provisions in the Articles of Confederation themselves which allowed for amendments only by unanimous consent of all states. n43 Thus, popular sovereigntists reasoned that the "irregular and unauthorized" manner in which the Constitution was drafted and ratified justified their continued right of resistance. n44 Thus, the U.S. Constitution of l787 was in itself an act of [*683] civil disobedience because the framers did not comply with the onerous amendment procedures of the Articles of Confederation and the requirements of the Continental Congress.
Consistent with the original intent theory, Professor Saul Cornell argues that the dissenters or anti-federalists are the founders of a long and powerful tradition in American politics, and anti-federalist ideas are at the center of American constitutionalism. n45 Professor Paul Finkelman defines "anti-federalism" as a belief in "limited government, a weak national leader, and the granting of great deference to Congress as representing the "states" through the Senate." n46 Dissenting minorities, like birth control advocates, abolitionists, persecuted religious minorities, and civil rights advocates like the Reverend Martin Luther King Jr. have "turned to the Constitution for protection." n47 Professor Finkelman further observed that, "rather than denouncing the Constitution, the most oppressed minorities in America have embraced it." n48 Paul Finkelman persuasively shows that the Confederacy embraced "much of the spirit and philosophy of the anti-federalists" because it was a state-centered nation that stressed limited national powers. n49 Finkelman also argues that the Articles of Confederation resembled the Constitution of l787, as amended by the Bill of Rights. n50 The Articles of Confederation embodied anti-federalist ideas such as rotation in office, limited government, and states' rights, "while it simultaneously, and inconsistently," attempted to create a modern national state. n51 This inconsistency reflects the duality of civil disobedience itself which at once protects the right of dissent and threatens the right to live in an ordered society under the principle of the rule of law.
In order to protect the stability of government, the U.S. Constitution and state constitutions limited popular sovereignty by setting up a judicial and legislative process to effectively object to law and policy. Conservatives like John Calhoun argued:
It would be the death-blow of constitutional democracy, to admit the right of the numerical majority, to alter or abolish constitutions at pleasure, regardless of the consent of the Government, or the forms prescribed for their amendment. It would be to admit that it had the right to set aside, at pleasure, that which was intended to restrain it, and which would make it just no restraint at all. n52
A constitution can be changed in two ways; by either complying with the amendment procedures in the constitution, or if there is no amendment provision, by obtaining the consent of the existing government. n53 Daniel Webster said that by adopting a constitution, "the people agreed to set bounds to their own power." n54 Therefore, the state constitutions and U.S. Constitution limit the right of resistance. United States Supreme Court Justice Taney clearly stated that "the right of revolution" which requires "a change by force ... is nowhere sanctioned ... in the Constitution of the United States." n55
In light of this historical and cultural context of the use of civil disobedience and the right of resistance, Part II examines different definitions proposed for the term civil disobedience in an attempt to uncover its deep structure. Part III examines the inherent duality of the term civil disobedience and the impact of that duality on legal protection for civil disobedience. Part IV examines arguments for and against the use of civil disobedience to protect minority rights in American society. Part V examines whether or not the U.S. Constitution protects the act of civil disobedience under the First Amendment rights to protest, dissent, peaceably assemble and the most precious of all constitutional guarantees, free speech. This part concludes that civil disobedience is not protected by the constitutional right to dissent or free speech.
II. The Deep Structure of Civil Disobedience
Let us begin by decoding the term "civil disobedience" and its hidden meanings. Civil disobedience is a non-violent act of breaking the law openly and publicly, without harming others, and accompanied by a willingness to accept punishment. n56 The term "civil [*685] disobedience" is built on an oxymoron that reflects the positive and negative aspects of the concept. Strict law and order proponents take the view that the term "civil disobedience" is "semantically inaccurate" n57 because disobedience cannot be civil (i.e. acceptable in a civilized society): "In democratic societies any violation of the law is an uncivil act." n58 Opponents of civil disobedience claim that civil disobedients actually flaunt their lack of civility. n59 In other words, civil disobedience is about disobeying the law, and disobeying the law simply cannot be deemed "civil" in a society that values order and stability.
But civil disobedience is more than just about disobeying the law. It is a means by which the disobedient can accomplish a higher moral or political purpose, such as petitioning lawmakers for necessary legislative enactment or reform. Civil disobedience is about disobeying man-made laws that the disobedient believes are unjust n60 or unconstitutional. Civil disobedients disobey invalid law in order to obey a higher law. n61 Martin Luther King Jr. believed that one has a moral duty to disobey unjust law, n62 and King defined unjust laws by using the words of St. Thomas Aquinas, who extolled the virtues of civil disobedients: "an unjust law is a human law that is not rooted in eternal and natural law." n63 King not only justified the illegal acts of civil disobedience but raised civil disobedients to the level of near sainthood: "I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law." n64
Civil disobedients are not just lawbreakers. n65 Some of our greatest [*686] heroes violated the laws: Socrates, Thoreau, Gandhi, and King. Some of our finest leaders, like George Washington, Benjamin Franklin, Alexander Hamilton, Thomas Jefferson, and Samuel Adams, were civil disobedients who were deemed traitors by some and patriots by others. n66 United States Supreme Court Justice Abe Fortas said that civil disobedience is an act of courage, even though each of us is subject to the law and each of us is duty bound to obey it:
But if I had lived in Germany in Hitler's days, I hope I would have refused to wear an armband, to Heil Hitler, to submit to genocide ... If I had been a Negro living in Birmingham or Little Rock or Plaquemines Parish, Louisiana, I hope I would have disobeyed the state laws that said that I might not enter the public waiting room in the bus station reserved for "Whites' ... I hope I would have had the courage to disobey, although the segregation ordinances were presumably law until they were declared unconstitutional. n67
The term "civil disobedience" has a fixed composite structure which requires the adjective "civil" to be linked to the term "disobedience." The word "civil" is a necessary element in the concept and reflects the duality inherent in the act of civil disobedience. What is so "civil" about "civil disobedience?" The word "civil" conjures up notions of "civility" and "civilization," both of which lend a positive connotation to the otherwise unacceptable act of disobeying the law in a society that believes in the rule of law. Civil disobedience is a deliberate but nonviolent act of law-breaking designed to call attention to a particular law or set of laws of questionable legitimacy or morality. n68 Civil disobedience is thought to be a morally justifiable violation of the law, n69 and thus an act of obedience to natural law. Civil disobedience is conduct that is distinguishable from ordinary disobedience and from crime itself. n70 That is why it is called "civil." Civil disobedience, like social protest, serves the law's need for growth and reform. n71
The positive connotations of the act of civil disobedience are reflected in the connotations rather than the denotations of the term "civil." The first meaning of the term "civil" refers to that which relates to the state or to its citizenry, such as "civil rights," or that [*687] which relates to private rights and remedies that are sought by lawsuits, as distinct from criminal proceedings, n72 such as "civil litigation." The term "civil" also refers to any of the modern legal systems derived from Roman law, like that of France or Louisiana's civil-law jurisdiction derived from the Napoleonic Code. n73 But the term "civil" also relates to the concept of "civility," politeness, behavior characterized by civilized society, and the civilized way of dealing with other human beings. Ironically, civility is the antithesis of anarchy or lawlessness or chaos, the very thing those engaging in civil disobedience have been accused of producing. n74 The relationship of the term "civil" to "civility" adds a positive connotation to the otherwise negative concept of civil disobedience which is grounded in an impermissible violation of the law.
There are two kinds of civil disobedience practiced by Martin Luther King Jr.: one kind is protest in the form of a refusal to obey a law which the disobedient seeks to have overturned; this form of civil disobedience is protest against the law itself. n75 The other form of civil disobedience is the violation of laws which the protester does not challenge because of their own terms or effect. n76 In other words, the laws are not the subject of attack in this form of civil disobedience; here dissenters violate the laws in order to turn attention to a greater cause. n77
The term "civil disobedience," like the current term "terrorism," n78 has been misapplied in recent years. n79 Civil disobedience is not an effort to overthrow the government. Civil disobedience is a person's refusal to obey a law which that person believes to be unconstitutional or immoral. Civil disobedience is not the use of violence to compel the government to grant autonomy to a specific group. Unlike [*688] rebellion or revolution, the aim is to seek change by destroying the system. King and other civil disobedients sought reform within the established order. n80
Violation of the law is a necessary part of civil disobedience "in order to publicize a protest and to bring pressure on the public or the government to accomplish purposes which may have nothing to do with the law that is breached." n81
III. The Duality of Civil Disobedience
Martin Luther King Jr.'s definition of civil disobedience clearly reflects the duality inherent in the term civil disobedience. King advocated both obedience and disobedience of the law. n82 He implored his followers to obey just laws, on the one hand, and encouraged them to engage in open, public, non-violent direct action in violation of unjust laws that are out of harmony with what he called the "moral laws." n83 Understanding the publicity value of incarceration, King fully expected to be punished for the unlawful act of civil disobedience: "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty." n84
Like Martin Luther King Jr., United States Supreme Court Justice Abe Fortas defined civil disobedience as the violation of a law that is believed to be immoral or unconstitutional. n85
Both Justice Fortas and Reverend King opposed violence, and both sought legislative reform within the established order. n86 Susan B. Anthony, the legendary American suffragette, is a perfect example of this form of civil disobedience. She committed voter fraud twice, n87 and willingly refused bail in order to go to jail, simply in order to have her day in court to challenge the women's right to vote. n88 Ironically, Anthony's own lawyer deprived her of her right to appeal to the U.S. Supreme Court on a petition for habeas corpus because her lawyer [*689] posted a bond, against her wishes, thereby liberating her from prison. n89 Her case is one of the most egregious examples of due process violations in history. At trial, her case was decided not by a jury but by a judge. She was denied the right to speak during the trial because she was a woman; the judge declared her to be "incompetent" to testify on her own behalf. n90 The judge ultimately decided by directed verdict in her criminal trial (a violation of due process) that she was guilty of illegal voting. n91 He fined her $ l00 and refused to give her a jail sentence because he did not want her to become a martyr for the cause of women's right to vote. n92 This refusal to incarcerate Anthony reflects the importance of punishment for civil disobedience and why it is necessary to accept punishment in order to achieve results.
Mahatma Gandhi defined civil disobedience more broadly than King. Gandhi's civil disobedience has two different forms: (1) King's form of civil disobedience, which is non-violent disobedience of unjust laws in order to reform the law, and (2) disobedience of the law, not in order to protest the law but purely as a symbolic gesture of revolt against a corrupt or tyrannical state. n93 Gandhi was a great proponent of violating laws in order to "publicize a protest and bring pressure on the public or the government to accomplish purposes which had little to do with the law that was breached." n94
John Rawls defined civil disobedience as acts that are "public, non-violent, n95 conscientious yet political[,] ... done with the aim of bringing about a change in the law or policies of government." n96 The key elements missing in Rawls' definition are the word "illegal" and the expectation by those who engage in civil disobedience to be punished for their illegal act. Rawls defined three conditions that a movement must meet to practice civil disobedience in a reasonably [*690] just society. The first is to determine "whether the object of protest is appropriate for civil disobedience." n97 The second is to prove that the political process failed, even though "normal appeals to the political majority have already been made in good faith." n98 The third condition arises when "the natural duty of justice requires a certain restraint." n99 Society can absorb only so much civil disobedience, or serious disorder could follow and disrupt "the efficacy of the just constitution." n100 Rawls assumes that civil disobedience has a limit because if it goes too far, it may lead to a breakdown in the respect for law. For Rawls, as well as for Justice Fortas, there is a need to balance one's constitutional right to protest with one's duty of civility in society, which prohibits the use of violence even to accomplish a just purpose. n101
Thus, an act of civil disobedience "must be nonviolent, open and visible, illegal, and performed for a moral purpose to protest an unjust law, or to object to the status quo and with the expectation of punishment." n102 Within the confines of this definition, one may ask why one would choose civil disobedience over other permissible forms of reform and whether the United States Constitution protects civil disobedience as a form of dissent or protest. In view of the definition proposed, it is clear that civil disobedience is more than mere dissent or protest, n103 both of which are constitutionally permissible because civil disobedience is an illegal form of protest, a kind of dissent that is probably not protected by the constitutional right of dissent or the right to assemble peaceably. Moreover, civil disobedience involving unlawful acts is a form of expressive speech or conduct that is probably not protected by the First Amendment constitutional right of free speech. n104 Even though King, one of the great proponents of civil disobedience in the United States, believed that the United States [*691] Constitution was on his side, n105 it is this author's contention that the U.S. Constitution cannot protect civil disobedience because to do so would undermine the very force of this particular speech act that is by its very nature designed to draw attention to the moral or political cause the disobedient is proposing to reform.
IV. Arguments For and Against Civil Disobedience
Civil disobedience is an oxymoron that reflects a basic duality inherent in its meaning because civil disobedience falls somewhere on the continuum between blind obedience to the law, the right to resistance, and total revolution. The concept is confusing and has no universally-accepted definition. n106 Some consider civil disobedience to be a permissible form of dissent, protest, speech or expressive conduct, a last ditch effort to be used when the courts and Congress have failed to reform unjust law or failed to create necessary, legal protections for minorities. Others consider civil disobedience to be impermissible lawlessness, the road to anarchy, and even if the conduct is non-violent and done for a moral purpose, civil disobedience is per se illegal in a society built on the principles of the rule of law.
A. Arguments For Civil Disobedience
Proponents of civil disobedience claim it is an alternative means to accomplish a valid purpose in society and should be protected as "political speech" under the First Amendment to the United States Constitution. n107 John Rawls compares civil disobedience to public speech. n108 But in order to adduce a free-speech argument n109 for civil disobedience, one must determine how far the protection of free speech really goes and whether the form of illegal protest in question is like other protected forms of communication: gestures, symbolic responses, and other nonverbal acts which are protected under the First Amendment of the Constitution. Carl Cohen claims that open [*692] and uninhibited political criticism is of such fundamental importance in a democracy that such conduct will be protected, even when it may appear otherwise rightly unlawful. n110 Martha Minow argues persuasively that the legal system itself needs people willing to break the law for political reasons: "The legitimacy of the system itself requires confrontation with disobedience defended by individuals who view compliance as immoral or by individuals seeking to persuade lawful officials to change." n111 Ronald Dworkin refers to civil disobedience as "justifiable disobedience" n112 because the conduct is morally motivated. Henry David Thoreau, in his famous essay on Civil Disobedience, reminds his readers that all men have the right of revolution, the right to rebel, and the right to refuse allegiance to and to resist the government, when its tyranny or its inefficiency are great and unendurable. n113 Thoreau goes on to say that men who blindly obey the law are "not as men mainly, but as machines." n114 Thoreau advocates breaking the law rather than waiting for the slow process of the majority to alter unjust laws. n115 King, in his famous Letter from the Birmingham Jail, written while he was in prison for violating a permit to parade and demonstrate, adopts many of Thoreau's radical theories, refuses to wait any longer for the constitutional and God-given rights of Blacks, and espouses his own form of legal relativism. n116 King goes so far as to say that one has a moral duty to disobey unjust laws that are man-made. n117 King's moral argument reflects the legal [*693] reasoning of the Nuremberg Tribunal and the London Agreement of August 8, l945, establishing the International Military Tribunal that conducted trials of Nazis. The London Agreement and the Nuremberg trials established the principle that an individual is legally and personally responsible for carrying out unjust laws, even if the individual claims to have merely obeyed superior orders. n118 King claims all people have a moral and a "legal obligation to obey just laws," but they have an equally important moral obligation to disobey unjust laws in order to obey a higher, natural, or divine law whose authority preempts man-made laws. n119
Those who argue that civil disobedience is protected or should be protected by the Constitution find the origins of this argument in conflicts-of-law theory which purports that civil disobedients are torn between obedience to man-made law and obedience to a higher natural law. This argument has deep roots in the history of Western thought: Cicero, Aquinas, Grotius, Locke, even Thomas Jefferson who inscribed on the Great Seal of the United States: "Rebellion against tyrants is obedience to God." n120 St. Thomas Aquinas declared that human law does not bind a man in conscience, and if it conflicts with the higher law, human law should not be obeyed. n121 Aquinas is claiming that natural law preempts man-made law. "The difficulty inherent in the conflicts-of-law argument is the vagueness of natural law, the impossibility to codify natural law or to determine what natural law" requires or prohibits, and therefore the inapplicability of natural law to concrete cases. n122
B. Arguments Against Civil Disobedience
There is much opposition to civil disobedience. For the past two thousand years, philosophers have asked themselves whether one has an obligation to obey a law that is unjust. Scholars have grounded an obligation to obey unjust laws in six different legal theories. n123 These [*694] include the duty to obey the law out of gratitude to an existing legal system (i.e. Socrates and Plato's Crito); the duty to obey the law because of the individual's contractual agreement or consent to obey (i.e. John Locke and Jean-Jacques Rousseau); the duty to obey because of the negative consequences of disobedience; the duty to obey out of fairness; the duty to obey in order to support just institutions (i.e. H.L.A. Hart and John Rawl's theory), and the duty to obey in order to support your community (i.e. Ronald Dworkin's theory). n124
Proponents of the argument to obey unjust laws out of a debt of gratitude to our legal system have met with three oppositions. Firstly, citizens of the state arguably receive benefits involuntarily, and therefore the citizens do not need to show gratitude to the state by obeying unjust laws. n125 Secondly, obedience to the law does not necessarily represent the only appropriate way in which to express gratitude to the law. n126 Thirdly, a benefactor must operate from altruistic motives in order to deserve the beneficiary's gratitude, and the state is not necessarily altruistic. n127
Proponents of the argument to obey unjust laws out of implied consent to obey the law have been challenged on the theory that citizens did not knowingly "agree" to obey the laws of their community and one can not infer consent to obey the laws of a place just from continued residence in that location. n128
Theorists also criticize the argument that it is necessary to obey unjust laws because to do otherwise would have negative consequences. n129 "Undesirable consequences do not flow from every act of disobedience." n130 Thus, the argument from negative consequences is insufficient to justify a general obligation to obey the law. n131 The negative consequence theory is even more fallacious when applied to obedience to "bad laws." Bad law might be the very cause of the negative consequences rather than the act of disobedience of the law.
Critics of the duty to obey unjust law based on a fairness theory [*695] argue that fairness "does not supply a ground for an obligation to obey the law." n132 John Rawls argues that an individual's duty to support just institutions requires that individuals "comply with and ... do their share in just institutions." n133 Opponents argue that individuals have difficulty determining when institutions apply to them. Moreover, a "natural duty" to support institutions does not tie political obligations to the particular community to which individuals have an obligation to belong. n134
Professor Ronald Dworkin argues that the obligations that "attach to familial relationships and to friendships do not arise from free choice." n135 The obligation to obey the law derives from the same source as do communal obligations. n136 Dworkin, like Rawls, believes that individuals have natural duties towards justice that override any communal obligation in contravention to justice. n137
Another argument, based on the Machievellian principle that laudable ends do not justify purely illegal means, is often used by law and order supporters who refuse to consider the benign motivation of civil disobedients. They argue that to legitimize civil disobedience is contrary to a system governed by respect for the rule of law. n138 Erwin Griswold, cited by Dworkin, believes that:
it is of the essence of law that it is equally applied to all, that it binds all alike, irrespective of personal motive. For this reason, one who contemplates civil disobedience out of moral conviction should not be surprised and must not be bitter if a criminal conviction ensues ... organized society cannot endure on any other basis. n139
Judge Robert H. Bork believes that civil disobedience is pure lawlessness, n140 political anarchy, and "there is no reason for courts to protect any advocacy of law violation since that is merely advocacy of a piecemeal overthrow of the democratic system. n141 Critics of civil disobedience as a means of legal reform remind us that under the U.S. [*696] "system a person is entitled to challenge the validity of a law being applied against that person by resisting its enforcement in court on a plea of invalidity, and that lawful resistance to law is a cornerstone of our liberties." n142 Civil disobedience should only be a last resort after negotiation, conciliation, the courts, and Congress have failed. n143
V. Civil Disobedience is Not Protected by the Constitutional Right to Dissent or Free Speech
A. Constitutional Right to Dissent
The First Amendment of the U.S. Constitution guarantees us the right to dissent, to protest, to assemble peaceably, to criticize a law or government, and to oppose a law. n144 The more difficult question is how one may permissibly dissent if a person's first legal and moral imperative is to obey the law. Using means of opposition and dissent that are permissible under the U.S. system of law will not subject a dissenter to punishment by the state. The right to dissent may be exercised by the use of written and spoken words, by acts or conduct such as picketing, "peaceable" mass assembly, sit-ins n145 and demonstrations, which are referred to as "symbolic speech." The basic means of permissible protest under the U.S. system is the right to vote, "the right to organize and to elect new officials to enact and administer the law." n146 Burning the American flag has been defended as a permissible form of protest and protected as symbolic speech. n147 Burning one's draft card was found not to be protected because it interfered with the record keeping function of the U.S. government. n148
However, there are occasions when a person may feel morally justified in resorting to impermissible methods of dissent, such as a direct disobedience of a law. The use of impermissible means of dissent is an act of civil disobedience which is done intentionally and for moral purposes, and the disobedient, believing there is no other [*697] alternative to accomplish the moral aim, expects to be punished for the unlawful act, irrespective of the noble motivation. United States Supreme Court Justice Abe Fortas insisted that a punishable offense will not, and should not, be excused unless the law which is violated (such as a law segregating a public library) is unconstitutional or invalid. n149 If the right to protest or to assemble peaceably is exercised for the purpose of violating valid laws that are reasonably designed to avoid interference with others, the Constitution's guarantees will not shield the protester. n150
Breaking the law can be a forceful means of expression and can have effective social value if the violation ultimately accomplishes a reform of bad law. However, the free speech clause of the First Amendment does not protect this form of expressive conduct, even if breaking the law is done for a good purpose. The fact that a particular criminal's purpose in breaking the law is to publicize an injustice is no defense to the prosecution. n151 Accepting the penalty is part of the dissident's speech. n152 Thus, the U.S. Constitution does not protect civil disobedients from imposition of punishment for their crimes, and to do otherwise would "subvert the rule of law upon which the United States constitutional democracy is based." n153
There are limitations on the right to free speech. For example, the state has been known to require a permit for mass meetings or demonstrations, n154 or to prescribe reasonable regulations as to when and where to assemble a crowd. Justice Oliver Wendell Holmes made it clear that no one may falsely cry "fire" in a crowded theatre and cause a panic, even though that person may be motivated by good intentions. Good motives do not excuse action which will injure some and diminish the rights of others. n155
Constitutional First Amendment theory divides protected speech [*698] into two categories: speech or pure speech covering expressions through verbal or written words, and conduct. The line between speech and conduct is sometimes hazy. n156 Conduct is either expressive (i.e. communicates a message and is understood by an audience) or non-expressive. n157 Another way to analyze free speech issues is not to classify different types of "speech" or "conduct" but to classify kinds of government restrictions on such speech or conduct. The question then becomes whether the government restriction is aimed at the expressive content of the behavior or whether the government restriction is content neutral.
The Court will apply a three-pronged test to determine if government restrictions on expressive conduct are permissible: whether the action is within the government's power, whether the action serves an important or substantial governmental purpose, and whether the incidental restriction of speech is no greater than necessary to serve the government's purpose. n158 The inquiry is similar to the deferential rational basis standard. n159 If government action restricting speech is directed at the content of the message, then a strict scrutiny standard applies, unless the government is regulating speech on its own property that it has not opened for expression or unless the content of the speech falls within one of the categories that the Court had determined to be entirely unprotected or less protected than most speech. n160
The U.S. government may suppress unprotected speech and less protected speech subject to a less rigorous balancing test because the Court has determined that the particular type of speech is of lesser social value than fully protected speech. n161 Only a compelling interest and "means narrowly tailored" to meet that interest will justify a content-based regulation of protected speech. n162
Where a government action is content-neutral, regulating the time, place, or manner of speech rather than its message, the analysis is a balancing test that weighs the legitimacy and importance of the government interest, the impact of the government action, the availability and adequacy of alternate means of speech, traditions [*699] associated with the place of expression, and the affect of the regulation on discrete groups. n163
Professor Leslie Jacobs applies the traditional free speech clause model to civil disobedience and concludes that civil disobedience is not protected by the U.S. Constitution, even though she recognizes the important social value of civil disobedience. n164 Civil disobedience is expression conveyed through the means of breaking the law, and its most fundamental message is the "symbolic statement that comes from deliberately breaking the law." n165 Thus, lawbreaking is "conduct" rather than pure speech. n166 Under the Court's two-pronged test that looks to speaker intent and audience perception, civil disobedience should, by definition, be deemed "expressive conduct." n167 It is possible though that civil disobedience would be classified as per se non-expressive conduct because it produces non-communicative harms that stem from the functional act of breaking the law. n168 If this is true, the free speech clause inquiry would be over at this point. n169 Even if the Court were willing to view civil disobedience as expressive conduct, the traditional free speech clause analysis would terminate almost as quickly. n170 If the government's action is directed at the speech component of the conduct, the government's action becomes highly suspect. n171 If government action is content neutral, judicial deference would apply, and the action would be deemed valid according to an inquiry that is equivalent to rational basis scrutiny. n172
Professor Jacobs asserts that civil disobedience should not be judged according to the traditional free speech model summarized above. n173 Rather, Professor Jacobs argues in favor of the adoption of a different "free speech model that would include the public value of civil disobedience and the harms it necessarily causes." n174 Since civil disobedience is intentional lawbreaking done for the purpose of [*700] expression and under circumstances where it is likely to be understood, civil disobedience should be viewed as expressive conduct. However, since civil disobedience is different from the broad class of "lawbreaking" and also different from n175 the other broad class of "expressive conduct," Professor Jacobs believes that civil disobedience requires a free speech analysis all on its own. Nevertheless, Professor Jacobs realizes that lawbreaking as a protected form of expression could lead to anarchy, and, therefore, she reasons that civil disobedience cannot be protected under the First Amendment. The United States Supreme Court decided in l993 that physical assault cannot be "expressive conduct protected by the First Amendment." n176 This decision brings to mind the example that one cannot conceive of political assassination as constitutionally protected expression. Although Professor Jacobs rightly concludes that civil disobedients should be subject to penalty, she argues persuasively that civil disobedients should not be subject to enhanced penalties. n177
VI. Conclusion and the Delicate Balance
This Article has shown that the U.S. Constitution probably will not, and should not, protect non-violent civil disobedience by exempting it from punishment because to do so would undermine respect for the rule of law and erode effectiveness of the very act of civil disobedience itself. Arguably, the Constitution may "permit" civil disobedience and offer some protection against excessive punishment, but the Constitution cannot exempt civil disobedients from reasonable punishment or penalty for disobeying the law. The Constitution might protect civil disobedients from excessive or enhanced penalty because of the expressive or even moral purpose of civil disobedience. Those who, in good faith, engage in civil disobedience as a form of protest with the aim of reforming what they consider to be unjust laws are caught in the tension between the right of resistance and the right to live in a safe, orderly system of government. The U.S. Constitution certainly will not protect civil disobedience coupled with violence. The individual's constitutional rights to free speech, to protest, and to dissent must be balanced delicately with the right to live in an ordered society.
United States Supreme Court Justice Abe Fortas explained that [*701] the "U.S. Constitution seeks to accommodate two conflicting values, each of which is fundamental: the need for the right to speak freely, to protest effectively, to organize and to demonstrate; and the necessity of maintaining order so that other people's rights and the peace and security of the state, will not be impaired." n178 In order to strike the proper balance between these two competing principles, the courts will decide whether a particular form of protest or resistance to the law is within the confines of the First Amendment or whether the protesters have overstepped the broad limits in which constitutional protection is guaranteed. If the rights to dissent, to protest, to picket, to stage "freedom walks" or mass demonstrations are peaceable and if the protesters comply with reasonable regulations designed to protect the general public without substantially interfering with effective protest, then the U.S. Constitution will protect this form of expressive speech. n179 Moreover, the state is obligated constitutionally to protect protestors who march peaceably as in the famous Selma march. n180 Many of us stood by speechless as Neo-Nazis marched in Skokie, Illinois with the constitutionally mandated protection afforded by the government under the First Amendment of the U.S. Constitution. But if any of these forms of dissent or protest are done with the intent to cause unlawful action, like a riot or an assault upon others, or to cause injury to the property of others (such as a stampede for exits or breaking doors or windows), and if such unlawful action or injury occurs, the dissenter will not be protected by the U.S. Constitution. n181 The dissenter may be arrested, and if properly charged and convicted of violating a law, the dissenter will not be saved by the First Amendment of the U.S. Constitution. For civil disobedience to be an effective means of legislative reform, penalty must be a component of the free speech act and a necessary result of breaking the law, even if the purpose is noble and the ultimate consequences of the act are beneficial to society.