Durham County

What’s ‘subversive’ about erecting – or toppling – a monument? Legal voices weigh in

RAW VIDEO: Confederate statue toppled by protesters in Durham

Protesters celebrate after pulling down a Confederate statue in Durham, N.C. Monday afternoon Aug. 14, 2017.
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Protesters celebrate after pulling down a Confederate statue in Durham, N.C. Monday afternoon Aug. 14, 2017.

Lawyers are supposed to give their clients a zealous defense, so attorney and N.C. Central University law professor Scott Holmes used all the arrows in his quiver while defending the people accused of tearing down Durham County’s Confederate monument.

But one of the arrows in his quiver was wrapped in flaming irony.

Holmes invoked North Carolina’s 1941 law on “subversive activities” while arguing that his clients did nothing wrong last summer when they toppled the monument. The law among other things forbids using any public building to advocate overthrowing the U.S., state or local governments by force.

Confederates obviously tried to overthrow the government, so the theory goes that a monument honoring them supports that cause and knocking one down amounts to defending those governments and the people.

However, there’s a problem when it comes to basing legal arguments on the 1941 law. It “is clearly unconstitutional and has been for a half-century,” said Gene Nichol, a UNC-Chapel Hill law professor who teaches constitutional law.

Holmes conceded later that the statute is on shaky ground, but said it would now be “a little awkward” for him to challenge it in court after employing it in a criminal defense.

The North Carolina law – General Statute 14-11 – is a remnant of the wave of anti-subversive legislation that swept the country in stages beginning in World War I and again in the run-up to World War II.

The most famous of those laws, the Smith Act, was a federal statute Congress passed in 1940 to make it illegal to “advocate, abet, advise or teach” the prospective desireability of overthrowing any government in the United States. It sparked numerous legal challenges and was eventually repealed.

North Carolina legislators followed Congress’ lead early in 1941 at a time Germany appeared poised to win World War II because it had yet to add the former Soviet Union and the U.S. to its list of battlefield enemies.

Then-Gov. J. Melville Broughton called for action during his inaugural address that January. He said North Carolinians “will not tolerate the actions, teachings or propaganda of individuals, high or low, in industry or in our educational institutions, who may seek to undermine or overthrow our beloved nation.”

The N.C. General Assembly was quick to follow up, sponsors putting a bill in the hopper the very next day and passing it the following month, according to research by Gerry Cohen, former special counsel and director of the assembly’s bill-drafting office.

Once in place, the law was used, most notably in 1949 to ban the then-editor of the American Communist Party’s newspaper, John Gates, from giving a speech at UNC-CH. Unlike a much more famous North Carolina follow-up bill, the 1963 Speaker Ban Law, it remains on the books.

It’s nonetheless on life support thanks to a 1969 U.S. Supreme Court decision that says the First Amendment’s guarantees of free speech and free press “do not permit a state to forbid or proscribe advocacy of the use of force or of law violation” except when it’s “directed to inciting or producing imminent lawless action” and is likely to.

Leftists were the customary targets of prosecution under the various federal and state anti-subversion laws, but the Supreme Court ruled in an Ohio case that sought to punish a KKK leader for a cross-burning.

Until the Supreme Court weighed in, state laws like North Carolina’s were “defended, very plausibly,” by reference to a far more permissive high court ruling from 1927, said Jeff Powell, director-designate of the First Amendment Clinic Duke University’s law school is launching this summer. The justices overturned the 1927 decision on their way to negating the Ohio KKK prosecution.

Powell said it’s possible that North Carolina judges can read the subversive-activities law narrowly enough to make it still usable, much as they’ve interpreted the state’s anti-rioting laws to apply only to “imminent lawless action.” But unless they do, it “would appear to be overbroad and unconstitutional on its face,” he said.

In Durham’s Confederate memorial case, District Judge Fred Battaglia avoided the issue entirely by dismissing charges against two accused statue-topplers for lack of evidence and finding a third not guilty. Durham District Attorney Roger Echols then dropped charges against the remaining defendents.

Ray Gronberg: 919-419-6648, @rcgronberg