Civil Disobedience—Under What Circumstances?

Is there ever a time for civil disobedience?

Dallas salon owner Shelley Luther
AP Photo/LM Otero, found here

I’m not really a rebellious sort. My Church teaches us to be law-abiding, good citizens, and has had some marvelous worldwide successes by being scrupulously law-abiding even in countries with unfair laws.

But I admit that my reaction a couple of weeks ago to County Judge Lina Hidalgo’s executive order that everyone in the county had to wear a mask whenever they left their homes was an immediate and declarative “No!” that sort of startled Mr. Spherical Model.

That order is still in effect—although Hidalgo was slapped down by the governor right away and had to back off the punishments. So, while I’m willing to wear a face mask when it makes sense, I’m engaging in very minor civil disobedience when I brazenly walk down the road to my mailbox. But, truthfully, I didn’t believe I’d ever get arrested for something so pointless.

Fortunately, we have a reasonable and rational governor. But what if we didn’t?

Michigan doesn’t. California doesn’t. Virginia’s has been unreasonable. Even Kentucky’s. New York’s is pretty questionable, but at least Andrew Cuomo admitted his puzzlement yesterday over the findings that the large majority of new cases in NY State were people who had been staying home, avoiding mass transit and all the other things they thought they needed to avoid, and still new cases come.

sources of new Covid-19 cases in New York
graphic found here

I ended my post a week ago with a standard—the questions officials should now be required to answer when they ask something of us. Here’s what I said we need to know:

·         What exactly is being required of us.

·         How much that requirement will limit the spread of the disease (show the data).

·         Why it is imperative to limit the spread of the disease:

o   At this particular place (city, county, state).

o   At this particular time (until a particular date or a particular outcome).

We were asked to shut down our economy for this specific reason: to slow the spread of the virus enough to avoid overwhelming the healthcare system—hospital beds, ventilators, equipment. That was something we could temporarily agree to do.

So, once all measures show we have done that, requirements are lifted, right? Why hasn’t that happened? It isn’t because the virus is worse than we had thought at first.

I think there is probably a stew of reasons, or rationalizations. These could include a desire for power. They could also include the officials’ fear of litigation or political blame. They could include a preference for a bad economy if that can be blamed on Trump in an election year. It could be confusion over the science; epidemiologists tend to think in terms of their job of eradicating a pathogen and preventing spread or loss of life, without considering the costs; but officials need to weigh the risks of taking one action against the risks of taking another action, which depends on a lot more than whether or not a particular virus has been eliminated, albeit at the expense of other healthcare issues as well as overwhelming economic and social costs.

That’s why I think we need a standard. Let’s be sure our officials know what they’re asking, and why, and for how long. And then we’ll know whether those leaders’ orders are worth following.

I don’t think we should engage in civil disobedience lightly. It has to be done on principle. And it has to be done with a willingness to suffer the consequences.

Jordan Peterson gained notoriety, back in 2016, when he spoke out against a Canadian speech law requiring that certain pronouns be used. There had never been, in the history of British common law dating back most of a millennium, a law that required people to use certain words. On principle Peterson was against that law, and he said he would not obey it. He said he recognized that officials would be required to enforce a law that they had passed, so they would have to fine him, and he would not pay the fine. So they would have to imprison him, at which point he would engage in a hunger strike. 

The Canadian government had been trying to get away with saying the law only had to do with treating transgender people with respect and that it wouldn’t affect any decent law-abiding person. But he had read the law; whatever their stated intention, it was a law controlling speech, which is unacceptable to free people.

He thought long and hard—as he is particularly capable of doing—before taking his stand. Eventually his college withdrew requirements for him to stop saying what he’d said about that law and ended up standing by him.

We had another example of civil disobedience here in Texas this week. A salon owner in Dallas, Shelley Luther, had followed shutdown orders since they went into effect in mid-March. She—as well as her employees—were without a source of income for over a month (March 22-April 24). She still had to pay for the shop. She still had to pay for food for her family. So did those employees she wasn’t paying.

Luther had attempted more than 500 times to contact the government for unemployment and never got through.

She had attempted to get a loan for her small business through the government grants, but that didn’t come through until this past Sunday, May 3rd.

The governor announced the state would start opening back up after April 30^th, with “nonessential” businesses like hers opening up a week later (tomorrow)—using hygiene requirements that would avoid the spread of the virus. She was willing to make those adjustments.

But the Dallas County Judge (county executive), Clay Jenkins, decided to overrule the governor’s recommendations and require an additional two weeks of shutdown for her type of business, at which point she decided she was done with compliance and went ahead and opened up after April 24^th.

Local jurisdictions are allowed to make some judgments for their areas based on their local circumstances. But was this extension because Dallas was on the verge of overwhelming the medical resources? No. As an urban area, the spread of the virus there has been greater than most parts of the state. But as a percent of population, Dallas still rated quite low compared to most urban areas of the country. Medical resources were nowhere near being overwhelmed.

And the local officials were allowing arbitrary openings, such as the dog grooming place next door, even though they weren’t considered essential businesses either. Why can dogs be groomed, but people cannot? People have to bring a dog in, so there aren’t fewer people involved in the exchange of service.

Shelley Luther felt like she’d sacrificed to do her civic duty for long enough. So she defied the executive order and opened her business.

Then came a court order for her to shut down. She defied it. Then she was issued a restraining order preventing her from opening her business, which she tore up. That led to the contempt of court charge.

Shelley Luther speaks in court, screenshot from here

Then they arrested her, fined her $3,500 plus $500 a day, and sentenced her to seven days in jail without bail. Jail for contempt of court is very rare. A fine can be recompensed upon appeal, but jail time cannot be returned to a person’s life. And why no bail? (See the 8^th Amendment to the Constitution.)

Did she break the law? Technically, yes. (For discussion of the laws involved in this case, I suggest the Viva Frei law vlog, here and here.) The executive order isn’t exactly a law, but in times of emergency, temporary lawmaking powers are granted to such officials and can have the weight of law—even when they temporarily abridge our God-given rights. And contempt of court is definitely a real thing.

She broke the law—a stupid and arbitrary law—willingly and knowingly. And she was respectfully willing to submit to the sentence. But not without being heard.

There’s the important detail.

And she was heard. If you haven’t heard her words in court, they’re worth hearing as an example.

The judge, State District Judge Eric Moyé, sentenced her. But, in the hearing he told her he would suspend the jail time and simply charge the fine—if she would apologize and admit that she was both wrong and selfish to do what she had done.

She refused. She could get special treatment by submission? By saying something she did not believe, because it would validate the authority of government to take away her business and livelihood for arbitrary reasons? No. 

In the calm and sincere way Southern women say, “Bless your heart,” she said,

Judge, I would like to say that I have much respect for this court and laws. And that I’ve never been in this position before, and it’s not someplace that I want to be. But, I have to disagree with you, sir, when you say that I’m selfish. Because feeding my kids is not selfish. I have hair stylists that are going hungry because they’d rather feed their kids. So, sir, so if you think the law is more important than kids getting fed, then please go ahead with your decision, but I am not going to shut the salon.

Fortunately, these are not normal times. We would not normally have video from the court. It would have been handled in obscurity. She would have been just another lowly citizen who lost trying to fight city hall.

But we did hear her. And so did the world. 

Texas Lt. Governor Dan Patrick offered to pay her fine and suffer a week of house arrest to take the place of her sentence.

Dan Patrick's tweet, image found here

Governor Abbott's letter
from here

Texas Governor Abbott said, “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen.” He amended his orders to clarify that enforcement options would not entail jail time.

Texas Attorney General Ken Paxton said, “No Texan should face imprisonment for peacefully resisting an order that temporarily closed a lawful business and drastically limited their ability to provide for their family through no fault of their own.”

There were plenty of remedies short of jailing Ms. Luther:

·         a reasonable single fine,

·         a larger fine,

·         a reasonable daily fine until compliance,

·         a temporary suspension of her license,

·         a physical guard preventing entrance to her salon,

·         forgiveness since the shutdown was within days of being lifted anyway and she was following all the hygiene rules.

Imprisonment seems excessive. The Texas Supreme Court thought so too, which were brought in on a request for Habeas Corpus. They quickly ruled in her favor, based on the unreasonableness of the sentence. She was to be released this afternoon.

This does not end her case, just her jail time for being in contempt of court. She will still have to go through the court case based on her defying the executive order and subsequent court order, and any appeals after that.

There’s a GoFundMe account to help her in the upcoming legal battles, and to help her and her employees.

I heard another brave example this morning in an interview on Hugh Hewitt’s show. In his introduction, Hugh Hewitt says, 

It’s been my pleasure over 30 years in broadcast to talk to a lot of very successful people, very powerful people, very courageous people. Rarely do they all combine in one guest like they do in Jimmie Lai.

Jimmie Lai is a billionaire businessman in Hong Kong. He has been working for freedom there, where the Chinese people have had it, but where the Chinese Communist Party is trying to stamp it out. He has been part of demonstrations in Hong Kong the past couple of years asking for freedoms. He and others were recently arrested for not having the paper signed by the police granting them permission to demonstrate—in a way that they had a right to demonstrate, so it was a technicality intended to intimidate.

He’s particularly concerned about freedom of speech. If China had had freedom of speech, he says, then Li Wenliang, the doctor who first discovered the virus causing this pandemic, would have been allowed to put the news out in social media, to warn people. Instead, he got reprimanded. Lai points out that freedom of speech for the Chinese people is therefore in the best interests of the rest of the world.

So he continues to speak out, even at risk of jail or whatever comes, because the Chinese Communist Party is in the wrong. Fortunately, Mr. Lai is well known and able to get his voice heard.

I don’t want to be misunderstood as encouraging civil disobedience. But, among those we can admire who do it, they must:

·        Know clearly the principles they are standing on, what line of natural rights has been crossed that they find untenable.

·        Be certain that they cannot effect the needed change another way.

·        Be willing to suffer whatever consequences come.

·        Stay calm and reasonable in the face of whatever comes.

·        If at all possible, make sure their story and arguments get heard, unfiltered by propaganda.

That’s a high bar. But it’s what Rosa Parks did. It’s what Martin Luther King, Jr., did. It’s what Mahatma Ghandi did. During WWII Germany, it’s what Bonhoeffer  and Hübener did. 

And this week it’s what Texas salon owner Shelley Luther did.