Barber claims First Amendment, technical reasons to toss trespass conviction

The four-year-old case of a high-profile, left-of-center N.C. political activist convicted of trespassing at the state Legislative Building now sits in the hands of the state’s second-highest court.

The Rev. William Barber, leader of the national Poor People’s Campaign and former president of the state NAACP, wants his conviction thrown out. It stemmed from a 2017 protest aimed at Republican legislative leaders.

Barber’s lawyer argued before the N.C. Court of Appeals Wednesday that the trespass charge violated Barber’s First Amendment rights. Meanwhile, attorney Scott Holmes also contended that a technical violation should have prevented the case from reaching Superior Court in the first place.

“What this court needs to do is direct the state courts on how to deal with trespass when it is a public forum” like the corridors of the General Assembly’s buildings, Holmes said.

Special state Deputy Attorney General Matthew Tulchin countered that Barber had been charged and convicted because of illegal conduct, not the speech linked to his First Amendment rights. The state also downplayed Holmes’ technical argument.

“This case is just not about the First Amendment,” Tulchin said. “It is about a defendant who, along with approximately 50 other people, gathered in the hallways outside the legislative leaders’ offices and impeded people’s entering and exiting, and impeded the flow and staff who were trying to walk in those hallways.”

“They also created a huge disturbance,” he said, going on to describe the noise linked to yelling and call-and-response chants led by Barber.

Judges Chris Dillon, Lucy Inman, and Jeff Carpenter peppered both lawyers with questions. Some dealt with the details of a trespass charge. Others focused on a protester’s right to remain in a public place after authorities have asked them to leave.

Multiple questions focused on whether Barber’s case should have gone to Superior Court without an indictment. Prosecutors never acted on their initial May 2018 indictment of the activist. They proceeded instead with a misdemeanor statement of charges issued three weeks later. Holmes challenged that process.

There’s no timeline for a decision in the case. Barber’s original sentence for his 2019 trespass conviction was a $250 fine, court costs, one day in jail suspended for 12 months, two months of unsupervised probation, and 24 hours of community service.