After hearing about civil disobedience and the explicit illegality of it, I wondered, “how are these cases handled legally?” I decided to look it up. I found an interesting piece about something called the Political Necessity Defense. In certain situations, defendants can claim that their actions were motivated by their own political or moral convictions. The piece listed above argues that there is an inherent bias against this sort of argument in the American justice system due to the counter argument that there are always non-illegal ways to protest an unjust law. I agree with Cavallaro in his article that this drastically limits the types of actions that be taken against the government when it is perceived as being unfair or corrupt. How could you protest censorship without saying that which is banned? The article provides a “four-prong test” that is used to determine whether one qualifies for this defense:
(1) That he [defendant] was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.31
Do these limits provide too much of a constraining limit on what can count as “civil disobedience”? Does the ability to not have to have consequences for breaking the law lose some of the value of the disobedience? Does the ability to get away without consequences soften the power of civil disobedience. This also brings up an essential discussion of justice when deciding how these rules will be enforced. Because the legal system is controlled by those in power by definition, how can groups with little political power hope to receive this get out of jail free card. It seems like this problem limits the ability for those without political representation to actualize their demands. This is especially true when it comes to matters of segregation in the political process.
For African American’s before the civil rights era, political representation and participation was limited and regulated via unjust laws that were meant to exclude them from having a say in government policy. Because laws limited their ability to have political speech they had to express their discontent via illegal actions such as sit-ins and protests. This situation certainly qualifies under the political necessity defense and provides an interesting view for looking at other instances of dissent and disobedience. For those protesting the Iraq war several years ago, the response to protesters was far less hostile and few were jailed for their participation. However, these protests did next to nothing to discourage the Bush administration from pursuing its goals abroad both in Iraq, Afghanistan and throughout the world as part of its large scale war on terror. These modern protesters have little risk compared to those that protested during the civil rights age. Those outside the White House in the early 21st century had far less to worry about; they could easily go home at the end of the day and have the same life as anyone else, not even facing the risk of being forced to join in on a misguided and unjust war. Does this ability to go home unscathed diminish the power of contemporary protesters?