If you commit civil disobedience, expect criminal sanctions. That's how civil disobedience works, unless you're lucky. Six local activists are lucky.

On Sept. 22, 2001, six Boulder residents climbed a crane in Lower Downtown Denver and unfurled a huge banner that said "Wage Peace Now." The banner, which measured 40 feet by 70 feet, included images of the Dalai Lama, Martin Luther King Jr., Jesus Christ and Mahatma Gandhi. The banner stayed up for about three hours. The group was arrested on the site.

The crane was on private property. The six were charged with second-degree trespassing, a misdemeanor, and pleaded not guilty. This week, the "Wage Peace Six" were tried in a Denver court.

The defendants' attorney, Walter Gerash, tried to introduce a "free speech" defense, suggesting that the group's actions weren't criminal because they were protected by the First Amendment. The judge wouldn't allow that.

So Gerash proposed a "choice of evils" defense, arguing that the defendants broke the law because doing so was a lesser evil than obeying it. The judge wouldn't allow that, either.

But, lo, on Thursday, the jury deliberated briefly before returning verdicts of "not guilty." The law says one must cross a fence (or similar barrier) to be guilty of second-degree trespassing, and the LoDo property was not fully fenced. Third-degree trespassing, with which the group was not charged, involves only the transgression onto another's property.

Apparently, prosecutors made a harsher accusation than the one they could prove. But that doesn't mean the protesters weren't liable for the offense they actually did commit.

Jeff Friesen, a Boulder resident and one of the defendants, says the group trespassed because the mainstream media were ignoring peace rallies in the days after Sept. 11. "We all felt like lives were at risk at home and abroad," Friesen says. "We chose the lesser evil of trespassing over the greater evil of lives being lost."

"Our goal was to start a dialogue about alternatives to bombing Afghanistan," he says. The effort was partly successful. There were a few local news stories, but nothing nationally on this protest.

Was trespassing necessary to the protest? Friesen says that was the only way to get the flighty media's fleeting attention. But if this were civil disobedience, shouldn't the protesters admit guilt and accept punishment?

Friesen argues that the group spent two days in jail. "We knew that would occur. We were fully willing to accept that. As far as long-term punishment, none of us believed we deserved that severe a sentence." Second-degree trespassing carries a maximum (but unlikely) sentence of six months in jail.

In his essay "Civil Disobedience," Henry David Thoreau said, "Under a government which imprisons unjustly, the true place for a just man is also a prison." It's no doubt gratifying for the protesters to have successfully fought the prosecution. But their political statement would have been stronger if their legal defense had been weaker.

Reach Clint Talbott at (303) 473-1367 or talbottc@thedailycamera.com.

April 4, 2002

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