Patricia Nell Warren

Civil Disobedience: Trying to Stop the Moving Train

Filed By Patricia Nell Warren | May 27, 2009 1:00 PM | comments

Filed in: Action Alerts, Marriage Equality, Politics
Tags: Just Dissent, Prop 8 arrests, protest arrests

While2.jpg LGBT people argue fiercely over pros and cons of marriage, and decry the money spent by those who oppose their views, a lot more money is about to be poured out in a torrent. Those LGBT dollars will have to pay bail, lawyer fees, court costs, lost time from work. There will be lost jobs, lost careers, lost homes, bankrupt businesses, maybe even lives and families destroyed. Maybe even some brand-new LGBT marriages destroyed when one spouse winds up behind bars. Today a prison or jail sentence can come at a lethal financial and economic cost.

I'm talking about the 100 protesters who were arrested in San Francisco Tuesday, and the hundreds more who will be arrested tonight and tomorrow and onwards in Los Angeles and a hundred other cities. For some of them -- those who may shortly be shocked to find themselves facing a stiff sentence when they thought they'd spend a few days behind bars -- life as they know it may now be over. All because of recent changes in U.S. state laws that affect peaceful protest.

From time to time, over the past decade, Americans' diminishing freedom to protest peacefully has actually been covered in the independent media. I've often written about it myself, including a recent item for TBP . Anybody who really wants to know what has been happening out there can do their homework on Google. A lot of ugly stories about real-life convictions of peaceful protesters are out there to find, if you look for them.

But somehow, the news that "Toto, we're not in the Sixties any more" hasn't really penetrated our community's national sensibilities. As a result, many of our people gathering to protest the California Supreme Court's decision are still living in that old-timey myth about civil disobedience. They're confident that it's the still best and most wonderful way to get their viewpoint in front of news anchors and legislators -- even the President.

Desperate Defenders of the Status Quo

1.jpgBack in the Sixties and Seventies, some hard-core leftists did go to prison for a long time as punishment for their "revolutionary" street activism. But probably the vast majority of arrestees during those years were booked and then released...or they got off with a few token days in jail and a light fine.

Then, starting sometime in the 1980s, there were conservatives who were desperate to stop any further liberal changes in American society. They launched a quiet movement to stiffen state criminal codes. Their aim: to protect the old status quo's -- to make sure that no era of widespread protest and change could ever happen again. The new philosophy was that any protester was to be considered "violent," even if he or she didn't actually do anything violent -- and some law- enforcement people became willing to perjure themselves in order to justify their arrests of so-called "violent protesters." The new laws had more things to charge arrestees with, and longer sentences and bigger fines to hit them with.

With time, this new trend in law enforcement succeeded in equating "protest" with domestic terrorism. The major news media went slavishly along. As a result, Americans who believe everything they hear on TV now believe that any protester is a potential terrorist.

In California, for instance, you could now get up to a year in jail for a single misdemeanor -- like blocking a driveway or sidewalk. And if "conspiracy" could be proven (meaning that you talked about your upcoming street action to a buddy), you might be looking at felony charges. "Felony conspiracy" meant several years in prison, and possibly losing your right to vote.

Trying to Change State Laws

This blog of mine is not the place to go into the whole history, and all the gory details, of what was done to our "right to peacefully assemble" (supposedly guaranteed by the First Amendment). But it's something that has worried me for years.

In California in 2002, a group of us organized Just Dissent. We were a small task force of activists and civil-rights lawyers that attempted to get the state criminal code amended, so that the penalties for civil disobedience might be put back into the "token" category, where they used to be.

The bill we wrote, SB 1796, was actually passed by the CA legislature. But it was vetoed by Governor Gray Davis. In short, we were given an object lesson in politics, watching a Democratic figure in high office buckle obediently to conservative forces who opposed certain kinds of change in California.

Ironically, the LGBT people and allies now being arrested in California are under the boot heel of laws that Just Dissent tried to get changed in 2002.

And I'll bet my bottom dollar that sometime in the next day or so, they will be labelled "domestic terrorists" -- as will other LGBT arrestees across the country. All we need, to be utterly defeated, is for our marriage movement to be labelled "domestic terrorism."

Am I opposed to Prop 8? Absolutely.

Do I think that classic civil disobedience arrests are a good way to fight it? Absolutely not.

A Better Strategy for Today

I feel the same anger that everybody else feels, about the barefaced denial of a basic right -- about the denial of equality under the law. But anger is the wrong reason, and the wrong frame of mind, for laying out the best strategy. Right now,, we have to make the right moves -- the smartest moves possible. In my view, sacrificing hundreds of LGBT lives in this way is NOT a smart move.

Classic civil disobedience may have worked for activists in the Fifties and Sixties...but that was before the laws were changed so drastically.

So tonight I'm in shock as I watch the TV news and see these hundreds of Californians -- people of good will, flinging themselves under the rolling freight train of right-wing "eminent domain." They've convinced themselves that this is a good way to help bring that train of social death to a halt. But this kind of self-sacrifice is not going to stop the speeding train. It's only going to get a lot of people hurt. And meanwhile a lot of our financial resources -- money that could be spent on strategies that are more effective but less legally risky -- will have to be spent on trying to keep hundreds of our people out of prison.

For more information, the concerned reader can check out a website maintained by the L.A. Chapter of the National Lawyers Guild (an organization that supported Just Dissent) that has some good advice to give on law as it affects protest.

How ironic that the opponents of same-sex marriage had no problem amending California law to keep a minority group of citizens from marrying! Yet -- so far -- it has been impossible to change California state law in order to protect a basic civil liberty that belongs to every single American citizen.

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Sister Mary FP | May 27, 2009 6:25 PM

A timely article, Ms W. There is an LGBT forum with L.A.P.D. Chief Bratton set for next month, and I find it encouraging that the police department is willing to engage directly. I'll be there representing my little gang of rabblerousers, as we are interested in making sure the police department knows who we are, how we operate, and how we can be useful to their efforts. I'm forwarding both the link to the NLG page and this article to the rest of my sisters.

The protest march last night here in Los Angeles went quite smoothly, aside from one hiccup at the start, to which we credit both the organizers and the constabulary for being flexible, respectful and prepared.

(There's a typo in the link to the very good articles on the NLG site, it should be:



Sister Mary, I'm glad to hear about the upcoming forum. Maybe LAPD is embarrassed about how far it went over the top with the DNC arrests of protesters in 2000. Let's hope so.

Bill Perdue Bill Perdue | May 27, 2009 10:46 PM

Patricia, will you follow up on this for us? Sometimes the courts, in the face of a mass movement, relent so as not to create 'martyrs'. And sometimes they impose harsh sentences to do the opposite.

I'd like to know if those arrested do get draconian sentences, have to retain lawyers and etc. and if the courts and prosecutors have any leeway in these matters.

I'm against activists getting victimized by the legal system with civil disobedience or personal 'witnessing' to prove one's commitment. Just showing up at rallies and demos is all the proof anyone needs. It's counterproductive to allow yourself to be victimized or to advocate that others commit CD.

The movement needs activists in the streets not martyrs in the lockup.

Yes, I will definitely be following up with more reporting on this. Hopefully stories about any charges, trials and convictions will be inked or put out on the Web. (One of the anti-protest legal weapons of today is that judges often use gag orders to prevent demonstrators from talking to the media about their cases. Why is why we seldom see media followup on reports of arrests.)

Gag orders are a direct violation of first amendment rights. "Free speech zones" are as well. We only have the right to "peacefully assemble and ask for redress of grievances" if we reclaim those rights and stand up when arrested and express them. We do so by ignoring gag orders as a violation of one of our most sacred rights. We do so by becoming martyrs when required.

I do not disagree that the "rules" changed from the sixties when I was first involved in activism but the use of effective protest, for example, with John Sinclair got him released from a political motivated excessive can and would work today.

In the sixties I had police shoot at me during the National Student Strike (Kent State was part of that) I was charged with a fixed bayonet then as well. I fought back.

Paige Listerud | May 28, 2009 2:06 AM

This frightens me more than losing over Prop 8. I was accustomed to hearing about the protest rights being severely diminished under the Patriot Act, but as a general trend in the states since the eighties? No.

This country has gone mad. Absolutely mad. While I appreciate your suggestion to develop different strategies rather than "throw lives away" there are just as many costs to not awakening the country to the eradication of their basic civil rights. To that end, we need more civil disobedience and direct action, not less.

While I support your opinion and your experience. As one of the folks who was involved yesterday in the arrestable action at Grove and Van Ness, I have to say.. what you are describe has NOT been my experience in San Francisco.

On the ground, the police were more than cordial. Nearly 200 people were arrested -- all charged with an infraction and a misdemeanor, all traffic violations. While I don't know and can't comment on the status of their upcoming legal cases, we are actively working with pro-bono attorney's to get representation for the protesters.

Your article makes it seem like people are locked up and the key is thrown away. People were processed for the most part in the street (on site), brought to the hall of justice, cited, and released in time to be back out at 5:00pm to attend the large rally and march to Yerba Buena Gardens. There was no lengthy jail time. There was no talk of "domestic terrorists." The Police were absolutely cordial, took their time, were gentle (and we heard not a single instance of harassment by police, and many protesters were thanked by police).

I still believe civil disobedience is a useful and appropriate action to resist tyrannical actions by the state. If done correctly. If done in a timely fashion (for instance if protests and civil disobedience had continued, if there had been riots, who knows what else)... yes, the situation could have easily changed.

I cannot speak about what it is like for people organizing on other issues, on other days, in other movements. I'm sure there are plenty of examples of police brutality, violence, intimidation, long term incarceration and countless other injustices perpetrated upon protesters. But other people have engaged in arrestable civil disobedient actions in this city, been cited, released, and charges dismissed.

I think that fear mongering and scaring people away from Civil Disobedience only further marginalizes such actions from being ONE OF MANY tools in our toolbox. It is an important tool. It sends and important, immediate, and vital message. When people see civil disobedience they think one of two things "Wow that's stupid." or "Wow, that's brave." Everyone in this country fears arrest --and those getting arrested willingly deserve to be thanked and applauded for standing up for our rights and saying "Business will not continue as usual." For those people who say "Wow, that's brave." we may have at least opened their eyes that yes, this is an important issue for many of us, important enough to get arrested for.

So please. Don't jump the gun and start to talk about something that you haven't heard reports about. Everyone was out of county by 6:00pm. All reported being treated with respect. And I will post in the future on the outcomes of their cases.


With all due respect to yourself and others who demonstrated with you, I'm not going to back down on this issue. I agree with you that protests will continue to be one of the tools of social change. When people boil over on an issue, it's natural for them to take to the streets. They've been doing it for hundreds of years...which is why the right to "peacefully assemble" is written into the Bill of Rights.

But today Americans need to know BEFOREHAND how the laws have been changed and what risks they might be running.

If they are informed beforehand, and decide to take the risk with open eyes, that is their right, and I admire them for it. SoulForce is a model protest-based organization that educates its demonstrators about how to deal with arrest. ACT UP has been compelled to do so as well.

Sadly, many demonstrators, especially younger people, have no idea what they're jumping into...until it's too late, and they're looking at a high bail and a felony charge.

It's very easy for even the best-intentioned, most peaceable demonstrators to find themselves caught in the middle of a developing fracas. In fact, police are not above provoking a fracas in order to create cause to arrest. So I think you and others who weren't arrested were LUCKY.

As for the 200 S.F. arrestees, and those arrested in other cities, we'll have to wait and see how they're charged, and what happens with convictions. I will be reporting further on this.

Rick Elliott | May 28, 2009 4:03 AM

The right keeps talking about the slippery slope when facing changes. Now they are the creators of the slippery slope towards tyranny. Personally I see it in the Church where financial concerns are twisting the Church further and further to the cause of Pharisaism and selective literalism all covered over in the fake piety of "We're only following the Bible."
Politically I was ecstatic in Obama's election and the Democratic landslide. I'd hoped the chief executive and members of the Legislature would see this uprising of the people as a call for major change in how government was going to be handled. I was convinced that our President was truly different, but my hopes are slowly fading away.
--asking for auto workers to make concessions while requiring no such demands for the financial entities that brought our nation to its knees financially,
--selling out to "pork barrel" spending to get a budget passed instead of exposing the purveyors of pork to national scrutiny,
--by silence, siding with the forces of right wing fear tactics while letting basic equal rights go unchampioned,
--by actively condoning efforts to hide from public scrutiny our breaking with the globally agreed upon rights of prisoners,
--by continuing the acts of terrorism visited on the Iraqi people by a war most of the rest of the world decries.
The most telling event effecting me personally was who was invited to the table to discuss health care reform: the pharmaceutical industry, the health care provider industry, labor unions. BUT NOT A SINGLE PERSON WHO DEALS WITH THE HIGH COST TRAVESTY WE CALL HEALTH CARE, NO ONE WHO IS WITHOUT HEALTH INSURANCE, NO ONE WHO HAS TREATMMENT DENIED OR DELAYED BY MANAGED HEALTH CARE, NO DOCTORS, NO NURSES(WHO ARE THE FRONT LINE OF HEALTH CARE). The only ones invited to discuss this issue were those who have a profit at stake. The only semblance of grassroots representation was labor unions.
My shoulders are preparing for a shrug of defeat grudgingly acknowledging that it's business as usual with our government.
Have I had my hopes raised only to be duped once more?

Robert Ganshorn Robert Ganshorn | May 28, 2009 10:26 AM

Beautiful Patricia,

What constantly makes me fearful is the capricious inconsistency of application of the law as regards peaceful protest. "Nice feelings" and "cordial police" aside upon instructions we can be revisited with a "police riot" at the whim of a politico. Where are our actual rights if they can be arbitrary? America is letting herself become a "Banana Republic" of the type we once would laugh at for their backwardness.

Is freedom dead or on life support? I can no longer tell. Americans soon will no longer even remember what it was like to be free. That is the real reactionary today. Someone who remembers what it was like to be free and opposes change to it.

Marja Erwin | May 28, 2009 11:25 AM

Exactly. Thousands of us have already been beaten and tortured y police for peacefully protesting. This didn't begin with the Bush administration and won't end with the Obama admin. If anything, the police have been getting more aggressive - attacking permitted marches, breaking bones and burning lungs. Though there are well-documented cases of police waterboarding protesters in the Clinton years.

Wow, very sobering article Patricia.

David Gross over at THE PICKET LINE has some worthwhile thoughts on this particular "civil disobedience". A snippet:

"In true civil disobedience, one of the following two conditions must hold:

Either the law that you are breaking is itself immoral in some way, and that is the reason you are breaking it,
or, although the law itself might be unobjectionable to you, you are acting to prevent a wrong (or promote a good) in a way that requires you to incidentally break that law."

My Dear Friend:

You know how much I admire you Patricia and I can likely count on one hand the issues we might disagree on. This may be one of them--at least as you have framed it. I was at San Francisco City Hall during these protests and had a number of conversations with the organizers in the days and weeks leading up to the actions. I too, expressed concern and reservations. First, I worried as you do, that the protesters would be unprepared for the consequences. But you may be relieved to know--as I was--that there was extensive training, explaining not only the "how" of true civil disobedience, but also the "what" to expect when arrested. Lawyers were lined up in advance and the full ramifications explained. Happily, because we are not in the sixties anymore, many of the cops were gay themselves and actually supportive. Most, if not all of the lawyers they retained will not be needed. Second, I was worried about public reation. But truly, the protests were and have been so dignified and yet also determined, that the coverage I have seen has been universally respectful in turn. Finally, while yes, it is more risky to protest now given draconian new measures, it seems to me that is hardly a reason to stop protesting--otherwise they win. We should not allow their heavy-handed tactics to leave us cowering, or staying home. Yes, we have to fully appreciate the price we may pay--but I actually hope there are some willing to pay that price.

With Great Respect,


Jeanne Cordova | May 28, 2009 11:51 PM

With likewise respect, Patricia, I have to agree with Kate Kendell that now is the time and place for LGBTQ activists to consider civil disobedience as one of the tools in our fight-back arsenal. Like the San Fran group, our group which laid siege to the East L.A. Recorder’s office, was trained. We did take our cues from the National Lawyers Guild’s in-depth website. And we were advised by a top lawyer, a compatriot of Kate’s / NCLR, whom I can’t name now because I haven’t asked her if I can go public with her having advised us.
Yes, we did meet lesbian and gay officials on the inside, several. My domestic partner and I, a twenty-year unmarried couple went in first. We were all polite and dignified. Perhaps too polite in that despite our efforts and stopping business-as-usual, the Sheriff did not want to arrest us. Perhaps that was because our legal advisor, and an L.A. Times reporter, were watching the officers’ every move. We (the “Marry Us or Jail Us” Action Alliance) also grouped together for several days and made solid commitments to one another.
Activist sub-groups should not always seek permission from gay elders to do what they think is necessary. But, I would hope they continue to ask for our advice.
Thank you for your work to roll back possible penalties for civil disobedience. But, I agree with Kate – we cannot be frightened out of this work. I urge our young people to organize well ahead of time, be considered, learn a lot, have legal back up (including monetary resources planned ahead), but -- don’t be afraid. As Dolores Huerta said, “Walk the street with us into history. Get off the sidewalk.”

Jeanne Cordova, 40 year veteran activist

Susan Forrest | May 29, 2009 11:33 AM

Thank you for this article. I don't think that Prop 8 might be the issue that one is willing to 'lay down ones' life for'.

But consider this:
The governor's budget aims to dismantle ALL HIV services (testing, prevention, surveillance, education) and to shut down the State Office of AIDS. It will eviscerate ADAP - the payer of last resort for HIV medication. This in addition to the destruction of Healthy Families, CalWorks and other last-resort health programs.

When ACT UP was most active, people were dying every single day. There were very few medical interventions. And people - people who had nothing to lose - took to the streets. Their alternatives were: Fight in the streets or die in the streets.

The constitution ensures that prisoners receive necessary medication. No one else has that constitutional guarantee. Sure, CA prisons are under federal receivership because they have not been providing appropriate medical care - but how many people who AREN'T incarcerated don't get appropriate medical care? And for the millions (and this isn't an exaggeration) of people in CA who are about to lose their last-resort health care - what do we do? I include myself in this category. I work in HIV services and when I lose my job - as many tens of thousands of non-profit workers up and down the state will do - I won't be able to afford COBRA. and my health care is expensive. I have a chronic disease (a preexisting condition). Health is something to consider when risking arrest, certainly.

What do you do when the entire safety net has been cut? When there are LITERALLY (not figuratively) no resources?

If people decide to engage in CD because they have nothing to lose, we as a community need to support them. We need to support people who don't make that decision as well. We need to rouse people - by whatever means necessary - to get them aware of what is happening. And we don't have time. This budget will probably be signed by the Governor by the 2nd week of June. And it doesn't go to the floor - it goes from Committee to the desk. We don't have time.

So, it may be all "Toto, we aren't in the 60s anymore" when it comes to Prop 8, especially because we have DP protections - though if we didn't this would be as critical an issue to me as the budget, because of health care. But when it comes down to making a decision about living or dying and how one want to do that, well, it may not be the 60s, but it's about to be the 80s again. By that I mean that for many HIV+ people, when ADAP is cut the likeliness of multi-drug resistance becomes real. All of a sudden, one doesn't only have an availability issue, one has to face the issue that there are no more treatment options - available or not. HIV drugs are notoriously cross-resistant. so we go back to the days when 1500mg of AZT was what people dreamed of. What I mean is that it won't take long before many, many more HIV+ people have nothing to lose. Remember when people died within 6 months of their diagnosis? Do we want to go full circle on that?

I am in full support of people - again, I include myself - being willing to risk arrest (and whatever happens after that) because I lived through my 20s and 30s with friends dying every single week. Every single day in some weeks. And we built not only a movement, but institutions which actually keep people alive. Then we built communities which improved quality of life. We expanded access to medication. We stopped seeing people die (as much). When I realized that an entire year had passed between HIV-related deaths of my friends ... I felt like I'd gone to the other side of the rainbow. And how can I stand by and watch all of that taken away so that people don't have to pay higher taxes? So corporations don't have to pay taxes? I can't.

So again, thank you for the article (and your fantastic books). People need to know what CD means, and what they're getting into before they made a decision about whether they want to get into it. You can't make an educated decision without information. And it's our responsibility as people who have this information to get it out. But we have to support our fellow community members in whatever choices they make to save their lives, to live their lives with dignity, and to take risks to help other people live.

Susan, thanks for your reasoned comments. And I agree that California is going to be seeing explosive protests on other fronts as the state government's tragic budget malfeasance kicks in.

Kate and Jeanne, I appreciate your thoughtful and respectful comments...and yes, this is one point where we respectfully disagree. But my personal opinion and views aren't really the issue here. I don't think that my opinion is actually going to keep thousands of LGBT people from demonstrating across the country. This is a highly emotional issue for most people, and they're going to do what they feel they have to do.

At the most, I hope that my caveat will get some people to look before they leap.

The real issue is the simple fact of the moment that our society is in -- the way that peaceful protest has been demonized in recent decades. And that includes LGBT activists and AIDS activists who were arrested and run through the law-enforcement meatgrinder at the last three DNC and RNC conventions.

So far, everything seems to have gone pretty well with Prop 8 demonstrators (though I reserve judgment till those arrestees who get charged have actually been sentenced). Yes, the demonstrations have been incredibly dignified, and in a few cases that I've heard about, city officials and police have met with organizers beforehand and were willing to have a light hand.

But there will always be the cities where the religious right have big influence with law enforcement and prosecutors, and it's going to be a different story. And, in a volatile crowd situation, things can go wrong in an instant -- as a young gay friend of mine learned the hard way when he participated in a campus protest for the first time.

I'm going to be writing more on this subject. Meanwhile, I welcome the ongoing discussion. Hopefully it will get everybody thinking about how to strategize around the law-enforcement challenge that we face...that EVERY American faces who wants to demonstrate their demand for justice and change.

Tony Espinosa | June 1, 2009 3:14 AM

Well thought out. It reminded me of those days when my friends were dying daily-->weekly-->bi-monthly-->monthly-->every couple of months--> every few months-->every 6 months-->yearly, and now even less so! We musn't harken back to those days. Really, I still have "stuff" from my dead friends in boxes--at one point I had a whole closet just for them, but as the meds and my friends got better so shrank the closet--we can't go back into the closet!!! Let's meet soon for our next, and I hope more, "disobedient", "civil disobedience". And I do understand that while not all can go to jail--moral, emotional, mental, legal, and financial support carries as much weight as we FIGHT FOR EQUANIMITY, and as we ONCE AGAIN FIGHT FOR OUR LIVES! AGAIN AND AGAIN AND AGAIN!!!

Tony Espinosa
Former member Queer Nation and ACTUP Los Angeles