The ACLU of Georgia and other activist groups are weighing in on a state Supreme Court case involving the 2018 arrest of U.S. Rep. Nikema Williams that could shape the rights of Georgians to protest under the state Capitol.
At issue is state code barring anyone from “recklessly or knowingly to commit any act which may reasonably be expected to prevent or disrupt” a session or meeting of the state Legislature.
The ACLU says that statute is too broad, criminalizing not only those who would interrupt a legislative meeting, but also those exercising their right to free speech elsewhere on the Capitol campus.
“The freedom to speak does not mean that speakers cannot be held accountable for their actions if they cross the line into abuse,” the ACLU wrote in an amicus brief filed Monday with the Georgia Supreme Court on behalf of the Asian Americans Advancing Justice-Atlanta, Feminist Women’s Health Center, Georgia Conference of the NAACP, Georgia Equality, Georgia STAND UP, Planned Parenthood Southeast Advocates and the Southern Poverty Law Center. “But the law cannot just prophylactically fill in the gray areas between freedom and accountability by preemptively banning more speech than is necessary—including swaths of non-disruptive speech (however offensive or distasteful)—as a front-end cushion to prevent some speech from rising to the level of disruptive ‘abuse.’”
Georgia Capitol Police invoked that code in November, 2018 when they arrested Williams, an Atlanta Democrat and then a state senator, along with other protesters in the Gold Dome’s rotunda as they demonstrated over the ballot counting process in that year’s race for governor in which Gov. Brian Kemp defeated Democrat Stacey Abrams by about 50,000 votes.
State Rep. Park Cannon, an Atlanta Democrat, was arrested under the same statute in March after she knocked on an office door as Kemp was inside signing a controversial voting bill. Fulton County District Attorney Fani Willis declined to prosecute the case.
The rotunda is a common location for demonstrations and press conferences during a legislative session, and the protesters said their rally did not disrupt proceedings in the House chamber.
“The Legislature is loud and boisterous,” said Richard T. Griffiths, president emeritus of the Georgia First Amendment Foundation. “You’ve got lots of things going on, and in this particular case, the protests were loud and boisterous, but they were not disrupting the business of the House or the Senate. We believe that the First Amendment protects such speech, essentially petitioning their government from within the building.”
The demonstrators said they had their hands zip-tied behind their backs, with one defendant charging he suffered injuries from having his hands bound for a prolonged time in front of a backpack he was wearing. They were taken to Fulton County Jail, where they said they were kept for 10 hours without food, water or a sufficiently available restroom.
The charges against the demonstrators were dropped the following June, with the Cobb County Solicitor General Barry Morgan stating that the officers were correct in performing the arrest, but adding that he needed to consider the free speech ramifications.
“Our decision here does not reflect condemnation of that arrest decision; this decision is a choice to let the arrest itself serve as punishment for the crime,” Morgan said. “Our decision here is a balance of the absolute need for public safety and the right to free speech in a public forum.”
Three months later, Williams and nine other defendants filed a lawsuit in federal court arguing that the statute violates both the U.S. and Georgia Constitutions.
They point to another state supreme court decision, State v. Fielden, in which the court ruled a statute with similar language unconstitutional: “A person who recklessly or knowingly commits any act which may reasonably be expected to prevent or disrupt a lawful meeting, gathering, or procession is guilty of a misdemeanor.”
In that decision, the court ruled in favor of a group of silent protestors arrested after a 2006 Valdosta City Council meeting, finding the language was so broad it could apply to someone heckling a referee during a sports game or playing loud music while a neighbor was hosting a dinner party.
Lawyers representing the defendants argue the code under which they were arrested is also too broad: “the challenged statute violates the First Amendment because it does not require proof of intent to disrupt, does not require proof that acts would substantially impair any session, and does not require proof of any actual disruption.”
The federal court sent the case to the Georgia Supreme Court to rule whether the statute violates the state constitution.
Attorney General Chris Carr is representing the defendants. His office declined to respond to the new brief citing an inability to comment on an ongoing case.
In a Dec. 3 filing, lawyers representing the 12 law enforcement defendants named in the lawsuit said the officers were justified in their decision to arrest the protesters and the Fielden precedent is not relevant because the statute the protesters violated is tailored to the Capitol.
“It is limited to conduct reasonably expected to prevent or disrupt sessions or meetings of members of the Georgia General Assembly,” they wrote. “And it is also limited, necessarily, to conduct which occurs in and around the offices and chambers in which the legislature conducts its business. Section 16-11-34.1’s reach and, accordingly, the extent to which it may deter any protected speech, are far narrower than the statute at issue in Fielden.”