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St. Mary's Law Journal Volume 55 Number 3 Article 1 4-26-2024 Defiance Lackland H. Bloom Jr Southern Methodist University Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal  Part of the Civil Law Commons, Jurisprudence Commons, Law and Race Commons, Law and Society Commons, Legal History Commons, and the Military, War, and Peace Commons Recommended Citation Lackland H Bloom Jr, Defiance, 55 ST. MARY'S L.J. 641 (2024). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact sfowler@stmarytx.edu, egoode@stmarytx.edu.    641 ARTICLE DEFIANCE LACKLAND H. BLOOM, JR.* Introduction ....................................................................................................... 643 I.  English Antecedents ............................................................................. 645 II.  The American Revolution ................................................................... 650 III.  Shay’s Rebellion ..................................................................................... 654 IV.  Defiance of the Marshall Court .......................................................... 656 A.  M’Culloch v. Maryland .................................................................. 656 B.  Cherokee Nation Decisions .......................................................... 657 V.  The Nullification Crisis ........................................................................ 659 VI.  Religious and Ethnic Incidents Prior to the Civil War ................... 660 VII.  The Abolitionist Movement ................................................................ 661 A.  The Dorr Rebellion in Rhode Island ........................................... 662 B.  The Dred Scott Decision and Lincoln’s Response .................... 664 VIII.  Secession and the Civil War ................................................................ 665 IX.  Resistance to Reconstruction .............................................................. 668 X.  Persecution of the Mormons .............................................................. 669 XI.  Labor Wars ............................................................................................. 670 A.  The Molly Maguires ........................................................................ 672 B.  The Railroad Strike of 1877 .......................................................... 672 C.  The Haymarket Affair .................................................................... 673 D.  The Homestead Steel Strike ......................................................... 674 E.  The Pullman Strike ......................................................................... 675 F.  Idaho Mine Wars ............................................................................. 676 1Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  642 ST. MARY’S LAW JOURNAL [Vol. 55:641 G.  Ludlow ............................................................................................. 676 H.  Eastern Coal Wars .......................................................................... 677 I.  The Bombing Campaign ................................................................. 679 J.  Bread and Roses Strike .................................................................... 681 K.  Steel Strike of 1919 ........................................................................ 681 L.  Republic Steel Strike of 1937 ........................................................ 682 M.  Flint Sit- Down Strike ................................................................... 682 N.  Labor Violence ............................................................................... 683 XII.  World War I Protests ........................................................................... 685 XIII.  Tulsa Massacre of 1921 ........................................................................ 687 XIV.  Prohibition and the Defiance of Prohibition .................................... 688 XV.  Defiance by the Jehovah’s Witnesses and their Opponents .......... 692 XVI.  Brown v. Board of Education, School Desegregation and Resistance . 693 XVII.  The Civil Rights Movement ................................................................ 695 XVIII.  Resistance to School Prayer Decisions .............................................. 700 XIX.  The 1960s: Various Protest Movements, Especially Anti-War Protests ................................................................................................... 701 XX.  Urban Riots (The 1960s-Especially) .................................................. 703 XXI.  Defiance of Roe v. Wade and Abortion Law ................................... 707 XXII.  1992 Los Angeles Riots ........................................................................ 708 XXIII.  George Floyd Protests and Riots ....................................................... 709 XXIV.  Capitol Invasion of January 6 .............................................................. 712 Conclusion ......................................................................................................... 717    2St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 643  INTRODUCTION Mass public defiance of legal authority has a lengthy history in America, extending back to the nation’s founding.  Indeed, the very existence of the United States is the result of the ultimate act of defiance against legal authority—the revolution against Great Britain.  It hardly stopped there, however.  Defiance of legal authority has persisted from the outset to the present.  Examples include Shays’ Rebellion, defiance of the Supreme Court’s decisions in M’Culloch v. Maryland1 and the Cherokee territory cases;2 the Nullification Crisis; slave revolts; defiance of the fugitive slave laws; resistance to the Supreme Court’s decision in the Dred Scott3 case; the Civil War; persecution of freedmen following the Civil War and resistance to the Fourteenth and Fifteenth Amendments; the late nineteenth and early twentieth century’s labor violence; the draft resistance during the First World War; the defiance that led to prohibition and then the defiance of prohibition laws; the Civil Rights Movement; the defiance of the Court’s decision in Brown v. Board of Education;4 the defiance of the Court’s decisions with respect to school prayer and abortion; resistance to the Vietnam War; the 1960s urban riots; the Los Angeles riots following the acquittal of police officers charged with beating Rodney King; and most recently, defiance of law was triggered by the mistreatment of African Americans by police; and the Capitol’s invasion following the 2020 presidential election.  These are simply a few more prominent instances of defiance of legal authority in American history.  The American experiences are foreshadowed by the centuries-long history of defiance of legal authority in England, running at least from the Peasants’ Revolt of 1381 through the Lord George Gordon riots of the late eighteenth century (around the time of the American Revolution), not to mention the near continuous revolt and tumult in Ireland. Public defiance of legal authority can be a significant aspect of the legal culture.  Sometimes, public defiance changes or influences the law, and sometimes, it does not.  Defiance of law today may become the law  *Professor of Law and Larry and Jane Harlan Senior Research Fellow, Dedman School of Law, Southern Methodist University. 1. M’Culloch v. Maryland, 17 U.S. 316 (1819). 2. Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Worcester v. Georgia, 31 U.S. 515 (1832). 3. Scott v. Sanford, 60 U.S. 393 (1857). 4. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Brown v. Bd. of Educ., 349 U.S. 294 (1955). 3Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  644 ST. MARY’S LAW JOURNAL [Vol. 55:641 tomorrow.  Even if defiance does not prevail and transform the future law, it may still influence its direction.  Widespread public defiance may suggest that the law has taken a wrong turn or has evolved too rapidly.  Even when public defiance does not become incorporated into law or influence its path, it may still impact public values or perceptions.  Thus, public defiance can have a cultural, political, and legal impact. Weighed against public defiance of legal authority is the important “rule of law” value.  The law must generally be respected and obeyed for a stable democratic society to exist in which individual rights are protected.  And most people do obey the law even when they disagree with it.  However, if rule of law were an absolute value trumping all resistance and defiance, it would severely stunt the opportunity for legal evolution and change.  If rule of law always prevailed, there would have been no Abolitionist movement, no Civil Rights movement, and no American Revolution.  Therefore, it may be difficult to determine whether public defiance will be a positive or negative factor.  At the outset, the definition of terms is in order.  What is meant by public defiance of legal authority?  In a sense, all criminal conduct is a defiance of legal authority, especially if the lawbreaker is aware of the law and decides to violate it anyway.  That is not what is meant here by public defiance.  Rather, public defiance, as used herein, assumes that the individual or group violates a law in broad daylight out of disagreement with the legitimacy or equity of the law.  The law violator may or may not expect to be prosecuted and accept the consequences.  Defiance is a public act; secretive violations, such as failure to report taxable income, do not count.  Public defiance is a political act, although an extreme one.  It may be intended to provoke change in the law, or it may simply be an act of frustration.  Either way, it can affect the legal culture. It is also necessary to define “legal authority.”  Legal authority includes legislative, executive, and judicial authority.  Many of the examples discussed throughout involve any of the three.  Defiance of judicial authority, especially of Supreme Court decisions, is perhaps unique.  In our legal culture, the courts, especially the Supreme Court, have been accorded a special place in determining the law.  The courts, exercising judicial review, have the warrant to reject or interpret those laws by the executive and legislative branches of government.  As such, there is something nearly sacrosanct about judicial opinions.  Consequently, public defiance of the courts tends to be regarded as a more serious breach.  Nevertheless, 4St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 645 throughout American history, there have been well-known instances of public defiance of the United States Supreme Court. Finally, there must be a distinction drawn between peaceful protest and outright defiance of law.  The First Amendment protects the former and is essential to the operation of democratic government.5  The latter, public defiance, is by definition beyond the bounds of democratic self-government.  It is an assertion that democratic government and the system of laws that it has created is in some sense flawed and may be incapable of reform through lawful action.  The distinction between peaceful protest and defiance of legal authority can often be thin, especially given that the former often bleeds into the latter.  This Article will focus on instances in which an individual or, much more usually, a group will publicly and deliberately defy the law based on a belief that it is unjust or simply wrong, sometimes but not always to provoke legal reform.  Just as private individuals can engage in public defiance of law, so may government officials.  In our democracy, everyone is under an obligation to obey the law.  Many instances of public defiance, as will be seen, involve misconduct by government officials.  When that occurs, ideally, the courts will impose sanctions. I.  ENGLISH ANTECEDENTS What took place in England before the American Revolution is significant to developing our own legal culture, though often readily distinguishable.  English antecedents are significant since Britain created the American colonies and were largely settled by British citizens who brought their culture with them.6  As such, the American colonies, and after the Revolution, of the United States were in many respects a derivation of the British culture and legal system.  The common law was largely adopted in the colonies and then in the United States.  For seven centuries, from the Norman Conquest until the American Revolution, England experienced multiple incidents of public defiance of law.7  The English were frequently unruly, and these instances were well known to the colonists and citizens of the United States.  These acts of defiance were influential but with  5. U.S. CONST. amend. I. 6. Magna Carta: Muse and Mentor, LIBR. OF CONG., https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/rights-of-englishmen-in-british-america.html [https://perma.cc/4V9K-LJYW]. 7. Sir Frederick Pollock, Maitland on English Law Before the Norman Conquest, ONLINE LIBR. LIBERTY, https://oll.libertyfund.org/page/maitland-on-english-law-before-the-norman-conquest [https://perma.cc/ANN7-RGUP]. 5Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  646 ST. MARY’S LAW JOURNAL [Vol. 55:641 limitations.  Many occurred in a medieval society scarcely resembling democratic government either in the United States or current day England.8  Moreover, some of these incidents involved defiance of the monarch, not of an elected government.9  Still, most were in clear defiance of law with dreadful consequences for the rebels.  As such, they are part of the tradition of public defiance of legal authority. One of the most notable instances of public defiance in English history was the establishment of the Magna Carta in 1215, where a subset of disgruntled barons upset with arbitrary and abusive rule forced King John to sign a charter, in which he agreed to abide by several written constraints on the exercise of authority.10  The Magna Carta was set aside by the Pope as illegitimate shortly after that, but was modified and reenacted subsequently.11  Though steeped in the arbitrary nature of medieval authority, the Magna Carta has come to reflect a significant step toward the exercise of legitimate legal authority and the replacement of arbitrary power with the rule of law.  Even so, it must not be forgotten that it came into existence through the exercise of coercive power in defiance of recognized legal authority, however arbitrary it might have been.  This is one early instance in which the march toward the rule of law and justice proceeded through the defiance of existing authority. One of the earliest incidents of mass public defiance of legal authority in England was the celebrated Peasants’ Revolt of 1381.12  There, a mob marched on London, presumably in revolt against a recently imposed head tax.13  It should be noted that a frequent characteristic of public defiance of legal authority both in England and in the United States is a complaint about  8. See generally id. (comparing medieval society and law with the modern day); Amy Tikkanen, Peasant’s Revolt, BRITTANICA (Dec. 12, 2023), https://www.britannica.com/event/Peasants-Revolt [https://perma.cc/A9RS-PVXD]. 9. JULIET BARKER, 1381: THE YEAR OF THE PEASANT’S REVOLT 110 (2014). 10. DAVID STARKEY, MAGNA CARTA: THE TRUE STORY BEHIND THE CHARTER 122 (2015); GEOFFREY HINDLEY, A BRIEF HISTORY OF MAGNA CARTA, at xvii, 192, 196, 211–12 (2008); see also DAN JONES, MAGNA CARTA: THE BIRTH OF LIBERTY 134 (2015) (“There are twenty-seven names in total, most of whom were bishops and barons who had remained loyal during the standoff of the preceding weeks.”). 11. STARKEY, supra note 10, at 91, 92, 122. 12. See generally, DAN JONES, SUMMER OF BLOOD: THE PEASANT’S REVOLT OF 1381 (2009) [hereinafter JONES, SUMMER OF BLOOD] (discussing historical background of the Peasants’ Revolt of 1381); BARKER, supra note 9 (contextualizing the Peasants’ Revolt of 1381 in the age of wars and taxes). 13. BARKER, supra note 9, at 110; SIMON SCHAMA, A HISTORY OF BRITAIN AT THE EDGE OF THE WORLD 3000 BC-AD 1603, at 248 (2000). 6St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 647 abusive taxation.14  The mob turned violent, looting, burning, and murdering in a state of fury.15  It purported to be loyal to young King Richard II although fed up with his corrupt advisors—yet another frequent characteristic of public defiance of law.16  The mob purported to be loyal to the just lawgiver or ultimate legal authority but discontented with the law’s administrators.17  The young King disingenuously purported to recognize the validity of the rebels’ demands and promised to correct the problems in order to disperse the mob, but he failed to follow through on his commitments.18  This is frequently a common strategy of those in power to address public defiance—to show sympathy to diffuse the threat but fail to carry through with meaningful reform.  Several instances of public defiance of the law occurred in subsequent years.  However, the following celebrated incident of public defiance was the Jack Cade’s Rebellion19 of the mid-fifteenth century, popularized in Shakespeare’s Henry VI, part II.20  Like the Peasants’ Rebellion, 170 years earlier, the rebellion arose in South-East England.21  As with the Peasants’ Revolt, much of the grievances were laid at the hands of corrupt counselors to the King.22  As is common with public defiance, the defiance initially began with peaceful protest of arguably legitimate grievances but was soon taken over by thugs and criminals who simply wanted to loot, riot, and settle scores.23  The rebels’ demands were not met, and the rebellion turned violent with significant murder and looting.24  The government responded with force and several of the rebels were executed.25  As with the Peasants’ Revolt, the Crown promised to meet many of the demands and pardon the rebels in order to regain control but reneged on its promises  14. BARKER, supra note 9, at 110. 15. SCHAMA, supra note 13, at 249, 252. 16. Id. 17. Id. 18. BARKER, supra note 9, at 393–94. 19. See generally DAN JONES, THE HOLLOW CROWN: THE WARS OF THE ROSES AND THE RISE OF THE TUDOR (2014) (providing background information about Jack Cade’s Rebellion); JOHN GILLINGHAM, THE WARS OF THE ROSES (1981) (quoting from Jack Cade’s manifesto: TREVOR ROYALE, THE WARS OF THE ROSES: ENGLAND’S FIRST CIVIL WAR (2009) (explaining the details of Jack Cade’s Rebellion)). 20. WILLIAM SHAKESPEARE, HENRY VI, Part 2, act 4, sc. 2–7. 21. See JONES, SUMMER OF BLOOD, supra note 12, at 176 (describing the King’s “show of royal magnanimity at Smithfield” and providing for the security of London). 22. ROYALE, supra note 19, at 197. 23. Id. at 196–99. 24. Id. at 199–200. 25. Id. at 200–01. 7Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  648 ST. MARY’S LAW JOURNAL [Vol. 55:641 once order was restored.26  This resulted in several more minor rebellions.27  Although the government had been able to put down the revolt, the very fact of the revolt indicated public dissatisfaction with the status quo, eventually culminating in outright civil war, i.e., the Wars of the Roses of the mid-fifteenth century.28   The English Civil War29 in the mid-seventeenth century, ultimately resulting in the execution of the King and the temporary abolition of the monarchy, is the next major incident of defiance of law that should be considered.30  It is arguably distinguishable from the other incidents cited in that it involved, to a large extent though not entirely, a dispute between different institutions of government (the Crown and Parliament) rather than an uprising by private citizens.31  The causes of the English Civil War remain a matter of continued historical dispute,32 however, the arrogance and constant misjudgments of King Charles I were certainly significant contributing factors.33  Whatever the root causes, and assuming that at the heart it was a power struggle between competing political institutions rather than a popular uprising, a civil war resulting in the execution of the monarch34 must be considered a defiance of legal authority.  The revolution collapsed following the death of Oliver Cromwell in that the rebels had failed to replace the monarchy with functioning alternative governmental institutions.35  Perhaps the lesson to be learned from the failure of the Protectorate is that however faulty government institutions may be, they have gathered a certain degree of cultural momentum which renders them difficult to replace, especially when there is little in the way of a functioning alternative.  26. Id. at 203–05. 27. Id. at 204–05. 28. JONES, SUMMER OF BLOOD, supra note 12, at 176–77. 29. CHARLES SPENCER, KILLERS OF THE KING: THE MEN WHO DARED TO EXECUTE CHARLES I 1–2 (2014); CHRISTOPHER HIBBERT, KING MOB: THE STORY OF LORD GEORGE GORDON AND THE RIOTS OF 1780, at 56–61 (1st ed. 1958); see generally, J.P. KENYON, THE CIVIL WARS OF ENGLAND (1988) (detailing the Civil War period of England). 30. See generally KENYON, supra note 29 (exploring the causes of the civil war period in England); SPENCER, supra note 29 (discussing the rule and execution of King Charles I). 31. JOHN MILLER, A BRIEF HISTORY OF THE ENGLISH CIVIL WARS 24 (2009) [hereinafter MILLER, ENGLISH CIVIL WARS]. 32. Id. at 23; see generally JOHN MORRILL, A VERY SHORT INTRODUCTION TO STUART BRITAIN (1984) (contextualizing the century long period of English civil wars). 33. MILLER, ENGLISH CIVIL WARS, supra note 31, at 22–23. 34. Id. at 203. 35. KENYON, supra note 29, at 222–23, 228–29. 8St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 649 The final incident from English history of note was the 1780 Lord George Gordon Riots.36  This incident is extremely significant for at least three reasons.  First, it occurred while Britain was fighting the American Revolution and, as such, had an impact on American culture.  Second, it was one of the most devastating riots to ever occur in England.  Third, it was inspired by religious prejudice and was taken over by a criminal mob with no concern for political ends.37  The riots began as a protest over a law passed by Parliament which attempted to slightly mitigate official discrimination against Roman Catholics.38  Lord George Gordon, an eccentric Scot, circulated a petition protesting the recent Act.39  He assembled a crowd to march with him to Parliament where the petition would be presented.40  Along the way, the crowd swelled into a mob composed, to a large extent, of criminals and hooligans who did not care at all about the petition’s substance but were primarily interested in rioting and looting.41  The mob arrived at Parliament and made an unsuccessful attempt to invade the Commons chamber.42  Gordon was permitted to present the petition which was overwhelmingly rejected by Parliament.43  Meanwhile, outside of Parliament, the mob turned violent, attacking members of the House of Lords who were arriving.44  The crowd continued to riot and loot for the next several nights, burning the house of Justice Mansfield and destroying the Newgate prison.45  Eventually, troops were called in and the riot was quelled.46 What can be learned from the Lord George Gordon Riots?  First, sometimes public protest and defiance can result from ignoble ends, such as, on this occasion, religious prejudice.  Second, the leaders of what starts as a peaceful protest can easily lose control.  The peaceful protest can turn into a violent riot either because some politically oriented protestors conclude that continuing to proceed peacefully is ineffective, or because the protest is seized by criminals and hoodlums who use it as an excuse to loot  36. See generally HIBBERT, supra note 29 (chronicling the riot and its inception). 37. Id. at 38–39, 63. 38. Id. at 34. 39. Id. at 1, 52. 40. Id. at 53–54. 41. Id. at 60–64. 42. Id. at 54. 43. Id. at 69–72. 44. Id. at 64–65. 45. Id. at 76, 91–92, 112–20. 46. Id. at 129–30. 9Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  650 ST. MARY’S LAW JOURNAL [Vol. 55:641 and riot.  Third, once the leaders lose control of the event, it is likely impossible to regain control.  Fourth, once an event turns into a full-fledged riot, it may be impossible to allow it to simply die out on its own.  Rather, the application of force may be necessary.  Finally, if the purpose of the protest/riot is in itself disreputable, such as continuing religious discrimination, the purpose will eventually be rejected no matter how sincere and committed the protestors might be.  The colonists fighting for their independence were well aware of the Gordon Riots and filed away the lessons learned for future reference. This is a brief introduction to the English antecedents which set the table and influenced the American experience to some extent.  The American colonial experience followed the English antecedents.  Especially during the first half of the eighteenth century, rioting and mass public defiance of law was quite common in the American colonies.47  As Englishmen or descendants of Englishmen, the colonists were heavily influenced by patterns of public defiance of legal authority which had regularly occurred in England. II. THE AMERICAN REVOLUTION The American Revolution is the ultimate example of defiance of legal authority.  The United States began with defiance of legal authority.  As such, anyone who asserts that defiance of legal authority can never be justified has some explaining to do. Relations between Great Britain and the American colonies began to deteriorate in the mid-eighteenth century, if not earlier, with the passage of the Navigation Acts which required that all trade from the colonies be conducted with the mother country.48  The French and Indian War from 1754 until 1763 increased tensions.49  The War and the subsequent need for British troops in the colonies lead to extreme costs on the British treasury.50  This led to various attempts by Parliament to impose taxes on the colonies.51  47. PAUL A. GILJE, RIOTING IN AMERICA 37 (1996). 48. JOHN C. MILLER, ORIGINS OF THE AMERICAN REVOLUTION 180 (1943) [hereinafter MILLER, AMERICAN REVOLUTION]. 49. THEODORE DRAPER, A STRUGGLE FOR POWER 181–82 (1996). 50. MILLER, AMERICAN REVOLUTION, supra note 48, at 44–45; DRAPER, supra note 49, at 181–182. 51. MILLER, AMERICAN REVOLUTION, supra note 48, at 181, 212. 10St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 651 John Otis’s famous case against the use of Writs of Assistance by the British against colonists also added to the defiant spirit.52  However, the incidents directly leading to the Revolution involved a series of taxes imposed by Parliament between 1764 and 1774.53  Initially, some colonists conceded that England had the right to impose taxes and regulation on external trade of the colonies, but maintained that internal taxes were forbidden.54  The English rejected this distinction between external and internal and between taxation and regulation.55  Rather, they asserted that concerning the colonies, Parliament had the right to impose taxation and regulation on the colonies to any extent.56  That was the very essence of the relation between the mother country and the colonies. There was much soul searching by the colonists.  Many hoped to avoid a violent break with the mother country.57  Still, many of the most prominent citizens of the colonies believed they were continually disrespected by the British government.58 The incidents leading directly to the Revolution began with the passage of the Stamp Act in 1765, which required all official documents to bear an official, and arguably costly, stamp.59  The colonists’ complaint was less with the tax imposed by the Act than with the fact that it had been imposed by a legislative body, Parliament, in which the colonies had no representation.60  The cry of protest became: “No Taxation Without Representation.”61  The slogan contained a threat to the British government in England given that many regions, particularly the midlands, were heavily taxed though hardly represented in Parliament.62  The Stamp Act gave rise to violent riots which started in Boston with the Sons of Liberty.63  As is often the case, the  52. See DRAPER, supra note 49, at 186 (discussing John Adams’s opinion on what started the first spark of rebellion). 53. Id. at 218. 54. MILLER, AMERICAN REVOLUTION, supra note 48, at 180. 55. Id. at 181. 56. Id. 57. See id. (describing how colonists initially insisted American provinces were the “King’s colonies”). 58. Id. 59. EDMUND S. MORGAN, THE BIRTH OF THE REPUBLIC, 1763-89, at 20 (3d ed. 1992); DRAPER, supra note 49, at 218. 60. MILLER, AMERICAN REVOLUTION, supra note 48, at 212. 61. Id. 62. Id. 63. DRAPER, supra note 49, at 244–45. 11Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  652 ST. MARY’S LAW JOURNAL [Vol. 55:641 protests turned violent as the mob took over.64  General social discontent seemed to replace the Stamp Act as the motive for the riots.65  The Stamp Act was promptly repealed, but it was replaced by the equally unpopular Townsend Acts, which placed new taxes on the imports of various necessary commodities.66  Enforcement of the Acts led to public protest, resulting in the Boston Massacre where British troops opened fire and killed several unarmed civilians.67  Tarring and feathering customs officials also became a prominent practice of the mob.68  Most of the taxes were repealed however the tax on imported tea remained in place.69  This led to the event which came to be known as the Boston Tea Party.70  A group of colonists disguised as Native Americans boarded a British ship and tossed the tea overboard.71  This famous and celebrated incident was clearly an act in defiance of law and destruction of property. The Boston Tea Party obviously escalated tensions with the British government, which closed Boston Harbor and essentially revoked Massachusetts Bay Colony’s privileges of self-government.72  The other colonies fell into line behind Massachusetts and, in 1774, established the Continental Congress to determine how to proceed.73 The war broke out in 1775 when British troops attempted to seize munitions stored at Lexington and Concord in Massachusetts and the colonists opened fire.74  The Colonists formed a continental army commanded by George Washington and sent representatives to Philadelphia to decide on a course of action.75  A committee with Thomas Jefferson as primary draftsman produced the  64. Id.; GILJE, supra note 47, at 38–40. 65. DRAPER, supra note 49, at 249; GILJE, supra note 47, at 39, 41, 44. 66. GILJE, supra note 47, at 38. 67. Id. at 47. 68. Id. 69. Tea Act, HIST. (Nov. 9, 2009), https://www.history.com/topics/american-revolution/tea-act [https://perma.cc/7DTK-KK8A]. 70. GILJE, supra note 47, at 38. 71. Id. 72. Id. 73. The Intolerable Acts, AM. BATTLEFIELD TRUST (Mar. 19, 2020)  https://www.battlefields.org/learn/articles/intolerable-acts [https://perma.cc/E6R6-6AUR]. 74. GILJE, supra note 47, at 41. 75. George Washington Assigned to Lead the Continental Army, HIST. (Feb. 15, 2024) https://www.history.com/this-day-in-history/george-washington-assigned-to-lead-the-continental-army [https://perma.cc/YS62-MY3H]. 12St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 653 Declaration of Independence.76  All thirteen colonies signed it.77  Jefferson and the Continental Congress knew that a declaration of independence was a defiance of established legal authority, so they thought carefully as to why they considered their actions justified.  Sometimes “in the [c]ourse of human events” to use Jefferson’s famous phrase, it is permissible, if not obligatory, for one people to disengage from the rule of another.78  Essentially, the Declaration argued that the purpose of government is to protect inalienable rights including “Life, Liberty and the pursuit of Happiness.”79  To justly pursue these ends, a government must derive its power and authority from the “consent of the governed.”80  In the event that a government fails to protect these inalienable rights and instead behaves in a tyrannical manner, the people have a right “to alter or to abolish it, and to institute [a] new Government.”81  Jefferson was explaining why at least in extreme circumstances there was a right not only to defiance but to revolution.  Given that revolution should not occur “for light and transient causes,”82  Jefferson felt the need to detail the abuses of King George III, which led the colonists to declare independence.  There followed a lengthy bill of particulars detailing the arbitrary abuse of power, the denial of self-government to the colonies, and of course, the imposition of taxes without consent.83 From the colonists’ perspective, the rejection of British authority was justified.  From the perspective of the British government, it was absolute defiance of the rule of law and needed to be met with maximum force.  So, for the next seven years, a bitter and bloody war would take place, and with the aid of the French, the colonists would ultimately prevail.84 What lessons can we learn from the Declaration of Independence and the American Revolution?  Would the lessons be very different had the colonists not prevailed?  Is the lesson that defiance can only be justified and  76. MORGAN, supra note 59, at 76; see generally WILLARD STERNE RANDALL, THOMAS JEFFERSON: A LIFE (1993) (explaining Thomas Jefferson’s writing process); GARRY WILLS, INVENTING AMERICA (1979) (describing Thomas Jefferson’s environment while drafting the Declaration of Independence). 77. THE DECLARATION OF INDEPENDENCE (U.S. 1776). 78. Id. para. 1. 79. Id. para. 2. 80. Id. 81. Id. 82. Id. 83.  Id. para. 2–29. 84. MILLER, AMERICAN REVOLUTION, supra note 48, at 44–45. 13Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  654 ST. MARY’S LAW JOURNAL [Vol. 55:641 celebrated if the revolutionists prevail through violent action?  Certainly, the Declaration and the Revolution illustrate that the rule of law has limits.  The colonists were well aware that the peaceful settlement of grievances was preferable.  The Declaration asserts that “We have Petitioned for Redress in the most humble terms.”85  Perhaps there was simply too great of a gulf of understanding between the two sides.  The colonists wished to be treated as equals.  The Crown thought of them and could only think of them as subjects and colonial subjects.  As such, there was little, if any, common ground.  For peaceful resolution of differences to be a possibility, there must be a common bond or at least certain shared understandings.  That was arguably lacking at the time of the American Revolution.  Is a lack of shared understanding a prerequisite for defiance of legal authority that fails to reach revolutionary proportions?  Or contrary to the Revolution, is most subsequent defiance simply a result of impatience with established procedures? The American Revolution resulted from conflicting conceptions of the role and rights of the American people.  Frequently, defiance of legal authority arises out of a dispute about the appropriate legal authority and what it provides.  The Americans viewed themselves as Englishmen entitled to all the rights and privileges accompanying that status.  The British viewed them as mere colonists completely under the thumb of the mother country.  Such a conflict in visions would certainly lead to revolution as it did.  But that may come with an obligation to succeed.  The very point of the Revolution was to create a government far less arbitrary than that of George III, which contained safeguards to protect the rights of the people against tyranny.  To the extent that this project was even partially successful, the justification for defiance of legal authority is diminished.  The lessons of the American Revolution may not translate readily to current times. III.    SHAY’S REBELLION Only four years after the Revolution ended, another popular uprising broke out, once again in Massachusetts.86  Farmers in western Massachusetts were unable to pay taxes and frequently had their land confiscated by  85. THE DECLARATION OF INDEPENDENCE para. 30 (U.S. 1776). 86. LEONARD L. RICHARDS, SHAY’S REBELLION: THE AMERICAN REVOLUTION’S FINAL BATTLE 4, 13 (2003). 14St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 655 creditors.87  In response, Daniel Shays, a revolutionary war veteran, led a large group of over four thousand farmers.88  They were unsuccessful in seizing an armory but managed to seize and shut down several courthouses.89  Seizing and closing courthouses to avoid payment of debt had occurred with some frequency in colonial America.90  The state called out the militia which was able to suppress the rebellion and disperse the rebels.91  The participants in the rebellion did not receive the acclaim of those who had fought in the American Revolution.  George Washington was critical, James Madison was appalled92 and Samuel Adams, one of the most vigorous supporters of the American Revolution, argued that the rebels should be executed.93  On the other hand, Thomas Jefferson famously wrote that “a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”94  In response to Shay’s Rebellion, Jefferson also famously wrote, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”95 The rebellion took place right before the Constitutional Convention assembled in Philadelphia.96  Arguably, it provided some support to the Federalists who campaigned for a stronger central government.97 As with so many rebellions and acts of defiance throughout history, Shay’s Rebellion was largely ignited by protest against burdensome taxation.  However, the tepid support for the rebels, at least by the elites, may suggest that rule of law ideology had largely taken hold, at least in response to violent rebellion.  It is also possible that the rebellion was seen by property owners as a threat to their own interests.  87. See id. at 16–17 (explaining how the Massachusetts legislature sought to ease the burden on taxpayers); PAUL DE VALLE, MASSACHUSETTS TROUBLEMAKERS: REBELS, REFORMERS, AND RADICALS FROM THE BAY STATE 44 (2009) (“Many good men, neighbors of the regulators, were being jailed for nonpayment of taxes and for other debts, and farms were being foreclosed on.”). 88. RICHARDS, supra note 86, at 7–10, 43. 89. Id. at 58–59. 90. GILJE, supra note 47, at 44; RICHARDS, supra note 86, at 16–17. 91. RICHARDS, supra note 86, at 23, 34–35. 92. ANDREW BURSTEIN & NANCY ISENBERG, MADISON AND JEFFERSON 167 (1st ed. 2010). 93. RICHARDS, supra note 86, at 16. 94. Letter from Thomas Jefferson to James Madison (Jan. 30, 1787),  https://www.varsitytutors.com/earlyamerica/early-america-review/volume-1/jefferson-letter-madison [https://perma.cc/VKE4-LMDV]. 95. Letter from Thomas Jefferson to William S. Smith (Nov. 13, 1787),  https://www.monticello.org/research-education/thomas-jefferson-encyclopedia/tree-liberty-quotation/ [https://perma.cc/ZUU4-VL96]. 96. RICHARDS, supra note 86, at 127, 132. 97. Id. at 132–34. 15Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  656 ST. MARY’S LAW JOURNAL [Vol. 55:641 IV. DEFIANCE OF THE MARSHALL COURT A. M’Culloch v. Maryland The Marshall Court took a strong Federalist approach to the resolution of legal issues.98  It also purported to establish the Supreme Court as the ultimate, and arguably exclusive, interpreter of the Constitution.99  Both approaches were controversial at the time.100 The important, but highly unpopular decision, in M’Culloch v. Maryland upheld the constitutionality of the Bank of the United States and also prohibited state taxation of the Bank’s paper.101  There was vigorous public criticism of the decision and opinion.  Ohio rejected the holding of M’Culloch, and the state legislature passed a “crowbar law” authorizing state law enforcement personnel to enter the bank and seize the amount of taxes imposed on the bank in clear violation of the holding in M’Culloch v. Maryland.102  This was explicit state defiance of a prior Supreme Court ruling.  The United States challenged Ohio’s defiance in Osborne v. United States103 and prevailed before the Supreme Court.104  Most of the opinion dealt with the procedural issue of whether Congress could constitutionally authorize a federally charted instrumentality to bring suit in federal court; but, on the substantive merits, the Court stood behind its opinion in M’Culloch and firmly rejected the Ohio defiance.105 The controversy over the Bank of the United States ended with further Presidential defiance, first of the Court and later of Congress.106  Initially, Congress re-chartered the second Bank of the United States.107  President Andrew Jackson vetoed the re-charter, partially disagreeing with  98. A Federalist Stronghold: John Marshall’s Supreme Court, USHISTORY  https://www.ushistory.org/us/20e.asp [https://perma.cc/U7YP-L5NX]. 99. Robert L. Clinton, Judicial Supremacy and Our Two Constitutions: Reflections on the Historical Record, THE HERITAGE FOUND. (June 19, 2020), https://www.heritage.org/courts/report/judicial-supremacy-and-our-two-constitutions-reflections-the-historical-record [https://perma.cc/68FH-FPYR]. 100. Id. 101. M’Culloch v. Maryland, 17 U.S. 316, 326, 330 (1819); LACKLAND H. BLOOM, JR., DO GREAT CASES MAKE BAD LAW? 23, 28–34 (2013). 102. MARK R. KILLENBECK, MCCULLOCH V. MARYLAND: SECURING A NATION 162 (2006). 103. Osborne v. United States, 22 U.S. 738 (1824). 104. Id. at 870–71 (1824). 105. Id. 106. Bank War, HIST. (Oct. 4, 2022), https://www.history.com/topics/19th-century/bank-war [https://perma.cc/JB4C-BKH3]. 107. Id. 16St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 657 Marshal’s opinion in M’Culloch.108  He wrote that the president must make his own interpretation of the Constitution and is not bound by prior Supreme Court precedent.109  Only the Secretary of the Treasury was authorized to remove federal funds from the Bank.110  The Secretary refused Jackson’s order to remove the funds from the Bank.111  Jackson dismissed the Secretary and appointed a replacement.112  Jackson made the same request of the replacement and was met with the same response.113  Once again, Jackson dismissed the Secretary and replaced him with future Chief Justice Roger Taney.114  Unlike his predecessors, Taney withdrew the funds, and the Bank of the United States collapsed.115  Because of his actions, the Senate refused to confirm Taney as permanent Secretary of the Treasury.116  Congress considered holding Jackson in contempt but declined when it became obvious that the public largely supported the President’s action.117  The President clearly defied the law that Congress had passed, but he did so as part of an early separation of powers struggle over the respective roles of the branches of government.  Jackson was a strong-willed individual and was not easily bullied even by Congress. B. Cherokee Nation Decisions Another example of defiance of the Marshall Court and its decisions occurred in response to the Court’s decisions in the Cherokee Nation disputes with Georgia.118  In the first three decades of the nineteenth century, a movement gained momentum to remove Native American tribes from the southeastern United States.119  President Andrew Jackson, elected in 1828, supported removal.  In Cherokee Nation v. Georgia,120 decided in 1831,  108. RICHARD ELLIS, AGGRESSIVE NATIONALISM: MCCULLOCH V. MARYLAND AND THE FOUNDATION OF FEDERAL AUTHORITY IN THE YOUNG REPUBLIC 214–215 (2007). 109. Bank War, supra note 106. 110. KILLENBECK, supra note 102, at 173. 111. Id. 112. Id. 113. Id. 114. Id. 115. Id. 116. Id. at 174. 117. Id. 118. See generally Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (holding Native American tribes are not foreign nations subject to original jurisdiction under Article III of the Constitution). 119. HUGH BROGAN, THE PENGUIN HISTORY OF THE UNITED STATES OF AMERICA 67–68 (1985). 120. Cherokee Nation v. Georgia, 30 U.S. 1 (1831). 17Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  658 ST. MARY’S LAW JOURNAL [Vol. 55:641 the Cherokee Nation sued to prevent their removal from Georgia pursuant to the federal Indian Removal Act, as well as Georgia acts endorsing and requiring such removal.121  The Supreme Court, in an opinion by Chief Justice Marshall, rejected the challenge for lack of standing on behalf of the Cherokee Nation on the ground that it was a domestic dependent nation rather than a foreign nation.122  Consequently, the removal of the Cherokee Nation from Oklahoma, known as the Trail of Tears occurred.123 The following year, the Court decided Worcester v. Georgia.124  There, a missionary invited by the Cherokee Nation onto its lands was prosecuted, convicted, and imprisoned in Georgia for entering Cherokee lands without permission of the Governor of Georgia.125  Worcester appealed to the Supreme Court, which invalidated the conviction on the ground that the Cherokee tribe, as a quasi-sovereign nation, had treaty rights with the United States, with which the state of Georgia could not interfere.126  However, Georgia ignored the decision and continued to imprison Worcester.127  President Andrew Jackson declined to enforce the Court’s decision.128  Jackson was reputed to have declared, “John Marshall has his decision.  Now let him enforce it.”129  Whether Jackson actually said that is disputed; however, his inaction was consistent with the statement.130  Worcester v. Georgia is one of the most explicit instances of defiance of a Supreme Court mandate not only by a state but by the Chief Executive as well.  It is difficult to imagine it occurring today.  However, it arose at a time when the Court had yet to establish its reputation as a co-equal branch of government with the authority to ultimately settle constitutional disputes.  The President and many states had a very different conception of the appropriate judicial role.  John Marshall was a strong-willed individual, but  121. See generally id. (discussing the United States Supreme Court’s 1831 opinion regarding the Cherokee Nation’s lawsuit seeking an injunction against the state of Georgia from enforcing laws to remove the tribe from area lands). 122. Id. at 19–20. 123. BROGAN, supra note 119, at 68. 124. See generally Worcester v. Georgia, 31 U.S. 515 (1832) (discussing the United States Supreme Court’s 1832 opinion invalidating Samuel A. Worcester’s conviction for trespass). 125. Id. at 528–29. 126. Id. at 529–31. 127. LEONARD BAKER & JOHN MARSHALL, A LIFE IN LAW 746 (1974). 128. Id. 129. CHRISTOPHER L. TOMLIN, THE UNITED STATES SUPREME COURT: THE PURSUIT OF JUSTICE 63 (2005). 130. Id. 18St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 659 so was Andrew Jackson.  Jackson was not afraid to battle with Marshall and defy him if necessary. V. THE NULLIFICATION CRISIS The Nullification Crisis of 1832 did not ultimately involve defiance of legal authority but rather raised a serious threat of such defiance and led to a public debate on the constitutional legitimacy of such defiance.131  In 1798, the Adams Administration enacted the controversial Alien and Sedition Acts, which, among other things, made it a crime to criticize certain high government officials.132  In response, Thomas Jefferson wrote the Kentucky Resolution and James Madison authored the Virginia Resolution.133  Each suggested that if the federal government acted unconstitutionally, state governments could interpose themselves between the federal government and their own citizens to protect their citizens against constitutional harm.134 During the first several decades of the nineteenth century, the federal government imposed substantial tariffs on imported goods.135  These tariffs were especially unpopular in the South, especially in South Carolina.136  There, a movement developed to declare the tariffs unconstitutional and to nullify them with respect to their operation in South Carolina.137  Building on the theory of interposition developed in the Kentucky and Virginia Resolutions; a Nullification Convention was called which did just that.138  President Jackson, who was generally an opponent of high tariffs, took a strong stand against nullification.139  Vice President Calhoun, of South Carolina, resigned and ran for the Senate, where he could better support the nullification movement.140  Senator Robert Hayne of South Carolina and Senator Daniel Webster of Massachusetts engaged in a  131. PAUL JOHNSON, A HISTORY OF THE AMERICAN PEOPLE 346 (1998); Brian Duignan, Nullification Crisis, BRITANNICA (Feb. 6,2012), https://www.britannica.com/topic/nullification-crisis [https://perma.cc/JD6K-NE3A]. 132. CHARLES SLACK, LIBERTY’S FIRST CRISIS 91, 164 (2015). 133. Id. at 164. 134. Id. at 164–66. 135. Michele Metych, Tariff of 1828, BRITANNICA (May 18, 2023),  https://www.britannica.com/topic/Tariff-of-1828 [https://perma.cc/HY6M-XMTZ]. 136. JOHNSON, supra note 131, at 346. 137. Id. 138. Id. 139. See id. at 347 (noting Jackson’s issuance of a Nullification Proclamation, which expressed his disagreement with the ability of a state to annul any law of the Union). 140. Id. 19Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  660 ST. MARY’S LAW JOURNAL [Vol. 55:641 famous debate in the Senate about the nature of the Union and the legitimacy of nullification.141  The Nullification Crisis was defused when Congress passed a law reducing tariffs.142  South Carolina repealed its Nullification Resolution.143 The Nullification Crisis of 1832 centered around tariffs but was, in fact, a prelude to the debate over slavery in the territories, secession, and the Civil War.144  The debate over the nature of the Union, the popular sovereignty versus the compact theory, which John Marshall had attempted to judicially settle in favor of the former in M’Culloch v Maryland, remained very much alive in the political process. VI. RELIGIOUS AND ETHNIC INCIDENTS PRIOR TO THE CIVIL WAR There were numerous acts of violence that preceded the Civil War in the northeastern cities, especially in New York City.145  Some were precipitated by hostility towards Catholic immigrants.146  There was a significant nativist backlash against European immigrants, especially the Irish.147  Some of this was attributable to the clash of different cultures with very different values.148  Some was based on social class distinctions.149  Some may have resulted from the exploitation of unskilled labor.150  Whatever the underlying cause, it was brought to a head by the battles between rival street gangs, especially with respect to volunteer fire patrols.151  Whenever a crowd gathered, there was a serious potential for violence, including murder.152  This mixture of volatility led to defiance of law through the preference for rowdy behavior.  141. MERRILL D. PETERSON, THE GREAT TRIUMVIRATE 172–79 (1987). 142. Id. at 133. 143. Id. 144. Id. at 212–13. 145. GILJE, supra note 47, at 60, 65–67. 146. Id. at 65. 147. Id. at 66–67. 148. Id. at 69–70. 149. Id. 150. Id. at 71. 151. Id. at 73.  This was dramatized in the motion picture THE GANGS OF NEW YORK (Miramax Films 2002). 152. Id. at 72. 20St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 661 VII.    THE ABOLITIONIST MOVEMENT The Abolitionist Movement began in the colonies prior to the revolution led primarily by the Quakers of Pennsylvania.153  The abolitionists demanded an immediate end to slavery and must be distinguished from the Republicans like Lincoln, who supported a gradual end to slavery and the end to the spread of slavery into new states and territories.154  The abolitionists were propelled by moral fervor often religiously inspired.155  The Abolitionist Movement reached a fever pitch in the 1830s with the publication of The Liberator newspaper by William Lloyd Garrison.156  For the most part, the abolitionists proceeded by legal means, including petitioning Congress and mass mailings of pamphlets.157  Abolitionists were often met with violent counter-reaction as with the murder of abolitionist publisher Elijah Lovejoy by a mob in Alton, Illinois in 1837.158  However, on occasion, abolitionists turned to defiance of law.  Perhaps the most well-known incident is the Kansas murders by crazed abolitionist John Brown and his subsequent unsuccessful seizure of the armory in Harpers Ferry, West Virginia.159 A more significant example of widespread defiance of law by the Abolitionist movement was the Underground Railroad, developed to permit runaway slaves to escape to freedom, primarily in Canada.160  Participation in the underground railway was in direct conflict with the Fugitive Slave Act which prohibited persons from aiding in the escape of runaway slaves.161  Perhaps the most extreme example of defiance of law in this area arose with respect to the escape of fugitive slave Joshua Glover in 1852.  He was  153. Anti-Slavery in North America, QUAKERS IN THE WORLD  https://www.quakersintheworld.org/quakers-in-action/56/Anti-Slavery-in-North-America [https://perma.cc/EEQ5-3YM8]; This Day in History: First American Abolition Society Founded in Philadelphia, HIST. (Nov. 13, 2009), https://www.history.com/this-day-in-history/first-american-abolition-society-founded-in-philadelphia [https://perma.cc/BHJ5-PDXL]. 154. Anti-Slavery in North America, supra note 153. 155. Id. 156. JOHNSON, supra note 131, at 447. 157. The African American Odyssey: A Quest for Full Citizenship, LIBR. OF CONG., https://www.loc.gov/exhibits/african-american-odyssey/abolition.html [https://perma.cc/V6XQ-PSSY]. 158. BROGAN, supra note 119, at 302. 159. JOHNSON, supra note 131, at 448–49. 160. Id. at 448. 161. Ableman v. Booth, 62 U.S. 506, 507 (1858); H. ROBERT BAKER, THE RESCUE OF JOSHUA GLOVER: A FUGITIVE SLAVE, THE CONSTITUTION, AND THE COMING OF THE CIVIL WAR, at xi, 48 (2006). 21Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  662 ST. MARY’S LAW JOURNAL [Vol. 55:641 captured and imprisoned in Wisconsin.162  His master, Bennami Garland, attempted to retrieve him pursuant to the Fugitive Slave Act.163  A mob led by Sherman Booth broke into the jail and set Glover free.  Booth was successfully prosecuted by the United States.164  However, a Wisconsin court granted a writ of habeas corpus releasing Booth.165  This was yet another example of the doctrine of nullification in which the state interposed itself between a citizen and the enforcement of federal law.  The United States appealed to the United States Supreme Court in Ableman v. Booth,166 which unanimously reversed the decision of the Wisconsin court.167  The Supreme Court was heavily criticized by anti-slavery advocates, however as a matter of federal law, it was clearly correct.168 It is surprising, at least in retrospect, that under the circumstances, the abolitionists were not more defiant of the law given the moral cause that they so vigorously supported and the degree of violence directed at them.  Many were Quakers.169  They tended to be religiously motivated and committed to non-violent methods.170  They also had faith that they would ultimately prevail through the legal process.  Given the issue at stake, the abolition of slavery and the moral fervor which it evoked, defiance of law, for instance in the case of the Underground Railroad, is at least understandable. A.    The Dorr Rebellion in Rhode Island  There was a mini-rebellion in Rhode Island in the 1840s over the legitimate constitution of the state.171  The state was governed by the Charter of 1663, which granted the franchise only to freeholders, effectively denying the vote to most residents of the state.172  Thomas Dorr and his followers  162. BAKER, supra note 161, at 2. 163. Id. at 1–2. 164. Id. at 6, 8, 23, 109. 165. Ableman, 62 U.S. at 510–11. 166. Ableman v. Booth, 62 U.S. 506 (1858). 167. Id. at 511, 526. 168. See BERNARD SCHWARTZ, A HISTORY OF THE SUPREME COURT 93 (1993) (stating the Court had to reverse due to federal supremacy, otherwise they would have been authorizing state courts to suspend the operation of the federal judicial power). 169. Quakers and the Underground Railroad, WORLDHISTORYUS (Aug. 8, 2017),  https://worldhistory.us/american-history/quakers-and-the-underground-railroad.php [https://perma.cc/7XQE-5H73]. 170. Id.; Anti-Slavery in North America, supra note 153. 171. SCHWARTZ, supra note 168, at 95. 172. Id. 22St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 663 ignored the Charter, held a People’s Convention, and drafted a new constitution which enfranchised a much larger constituency, held an election, and voted in the new constitution.173  Dorr was elected governor under the new constitution and demanded that the Charter government relinquish power.174  The Charter government passed a new constitution broadening the franchise, though not as much as the Dorr Constitution.175  The Dorr rebels declined to recognize the reformed constitution.176  Consequently, the established government declared martial law and attempted to arrest Dorr, who had fled the state.177  Although the Dorr Rebellion had been peaceable, it was still an attempt to overthrow the existing government.178  President Tyler recognized the Charter government as the legitimate government of Rhode Island, effectively ending the Dorr Rebellion.179  The Charter government attempted to arrest Martin Luther, a supporter of the Dorr Rebellion who, like Dorr, had also fled.180  The established government searched Luther’s house resulting in a trespass action being filed against Luther Borden, a member of the search party.181  Martin Luther argued that the Charter government lacked legitimate authority to act because it did not constitute a republican government within Article IV of the Constitution.182  This resulted in the great constitutional case of Luther v. Borden,183 in which the Supreme Court held that the question of who was the legitimate government of Rhode Island (at the heart of the case) and whether the Guarantee Clause of Article IV of the Constitution provided the means of providing an answer to that question was a political question beyond the competence of the federal judiciary.184  The existing establishment managed to defeat the Dorr Rebellion with military force.185  Dorr returned to the state, was convicted of treason, sentenced to hard labor, and died not long after his  173. Luther v. Borden, 48 U.S. 1, 36 (1849). 174. Id. at 37. 175. Id.; SCHWARTZ, supra note 168, at 95. 176. Luther, 48 U.S. at 37. 177. Id. 178. Id. at 34. 179. Id. at 44. 180. Id. at 34. 181. R. KENT NEWMYER, SUPREME COURT JUSTICE JOSEPH STORY 362 (1985). 182. Luther, 48 U.S. at 38, 52. 183. Luther v. Borden, 48 U.S. 1 (1849). 184. Id. at 42. 185. SCHWARTZ, supra note 168, at 95. 23Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  664 ST. MARY’S LAW JOURNAL [Vol. 55:641 release from prison.186  The Dorr Rebellion is an instance of populists frustrated with the impossibility of legal change turning to peaceful though extra-legal methods to change the existing system.  Although the rebellion was forcibly put down, it did cause the state establishment to produce a new Constitution that enfranchised more people, though not as many as they had hoped for.187 B. The Dred Scott Decision and Lincoln’s Response In 1857, the Supreme Court handed down its infamous decision in Dred Scott v. Sandford, holding that the Missouri Compromise, which had expired, was unconstitutional, at least to the extent that it would free slaves brought into a free territory.188  The Court also noted in dicta that a slave or descendant of a slave could not bring suit in federal court pursuant to diversity jurisdiction.189  The decision essentially rendered the purpose of the recently formed Republican party, halting the spread of slavery to the territories, illegal. The year following the Dred Scott decision, Stephen A. Douglas and Abraham Lincoln engaged in a series of debates in the course of the senatorial campaign in Illinois.190  The Dred Scott decision was a matter discussed.191  Douglas took a rule of law approach and argued that since the Supreme Court had resolved the constitutional issue, citizens were obligated to obey.192  Lincoln took a more nuanced approach.  First, he declared that he would abide by the specific factual ruling.193  That is, given that the Court had held that Scott remained a slave, Lincoln would not attempt to set him  186. Thomas Wilson Dorr Trial: 1844, ENCYCLOPEDIA.COM,  https://www.encyclopedia.com/law/law-magazines/thomas-wilson-dorr-trial-1844 [https://perma.cc/Y3L5-KKGD]. 187. Id. 188. Id. at 418. 189. Id. at 427; see DON FEHRENBACHER, THE DRED SCOTT CASE 6 (1978) (expounding on Chief Justice Taney’s distinct positions on the rights of private property, the relationship between the Constitution and the Articles of Confederation, the privileges-and-immunities clause, and the meaning of due process). 190. See generally THE LINCOLN—DOUGLAS DEBATES OF 1858, IN 3 COLLECTIONS OF THE ILLINOIS STATE HISTORICAL LIBRARY: 1 LINCOLN SERIES (1908) (transcribing the debate between Abraham Lincoln and Stephen A. Douglas in Ottawa, Illinois, August 21, 1858.). 191. Id. at 96, 105, 108. 192. Id. at 38–39.  Lincoln mocked Douglas’s position by characterizing it as the Supreme Court opinions are equivalent to “Thus saith the Lord.”  Id. at 114. 193. ARCHIBALD LEWIS BOUTON, THE LINCOLN AND DOUGLAS DEBATES 105, 108 (1905). 24St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 665 free.194  However, regarding the larger constitutional question, whether Congress could prohibit slavery in the territories, Lincoln argued that the Court lacked the final authority to resolve such an important issue in litigation between two private parties.195  At least until the Court reaffirmed that holding in subsequent cases, public officials had the right to attempt to change it.  As usual, Lincoln walked a fine line.  He did not attempt to justify outright defiance of the Court, however, unlike Douglas, he did not argue for automatic obedience either. Rather, he seemed to suggest, that at least with respect to some decisions of extreme public significance, public officials had a right to push back against rulings that they believed to be clearly in error.  Lincoln’s statements on Dred Scott have been viewed as a challenge to automatic assumptions of judicial supremacy and exclusivity.  Perhaps they are.  On the other hand, they may be viewed as an example of using all lawful means to challenge and hopefully obtain reversal of an egregiously bad decision. VIII.    SECESSION AND THE CIVIL WAR At least in retrospect, secession from the Union might seem like the ultimate act of defiance of law.  And yet that may depend on who won the war.  Theoretically, at least, the Civil War developed out of a longstanding disagreement over the nature of the nation’s origin.  Abraham Lincoln fought the Civil War under the banner of popular sovereignty, that is, the people, through their ratifying conventions in 1788, formed the Union and the states did not have the power to dissolve it.196  The states, however, believed in a different theory of national origin.  They believed that the Constitution, and the nation were created by a compact between the states, and if the United States government violated that compact, then the states, or at least some states, could dissolve it and go their own way.197  This disagreement went back to the founding of the nation.198  Chief Justice Marshall resolved the matter in favor of the popular sovereignty theory in M’Culloch v. Maryland in 1819.199  Given contemporary  194. Id. at 119–20. 195. Id. 196. James McPherson, A Brief Overview of the American Civil War, AM. BATTLEFIELD TRUST (Nov. 20, 2008), https://www.battlefields.org/learn/articles/brief-overview-american-civil-war [https://perma.cc/QF53-5FVD]. 197. Id. 198. Id. 199. M’Culloch v. Maryland, 17 U.S. 316, 388 (1819). 25Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  666 ST. MARY’S LAW JOURNAL [Vol. 55:641 respect for the Court, that would presumably resolve the matter, and hence, secession would be defiance of the law as pronounced by the Supreme Court.  However, that was not the case in the mid-nineteenth century.  Perhaps the issue was simply too large and essential to be resolved in one Supreme Court opinion.  Indeed, a decade after M’Culloch was decided, Webster and Hayne debated the matter in the Senate.200  Or perhaps the Court had not yet established sufficient respect with the public to have the final word on a constitutional issue of this magnitude.  In any event, at least as a political matter, the question of the origin of the Constitution was still alive in 1861 and perhaps could only be resolved through bloodshed.  Had Lincoln decided not to fight or had the Confederacy won the war, then perhaps the compact theory would have prevailed.  Thus, at the time of secession, it was unclear whether the seceding states were acting in defiance of the law.  They certainly believed that they were not.  Following the war in Texas v. White,201 the Supreme Court reaffirmed the popular sovereignty theory concluding that secession was indeed illegal.202  Quite apart from whether the Confederacy defied the law by seceding, historians have questioned whether President Lincoln defied the law in responding, particularly by suspending habeas corpus, declaring martial law and imprisoning supporters of the confederacy without cause.203  Lincoln believed and asserted that all the steps which he took were legal.204  Both at the time and later, some have disagreed.205  One of the most prominently discussed incidents involved the arrest of John Merryman, a vocal secessionist in Maryland, at the behest of President Lincoln.206  In Ex Parte Merryman,207 Chief Justice Roger Taney, sitting as a circuit judge, ruled that Lincoln had no authority to suspend the writ of habeas corpus, thus,  200. The Most Famous Speech, U.S. SENATE,  https://www.senate.gov/artandhistory/history/minute/The_Most_Famous_Senate_Speech.htm#:~:text=Observers%20then%20and%20since%20have,famous%20speech%20in%20Senate%20history [https://perma.cc/S3UT-XBK2]. 201. Texas v. White, 74 U.S. 700 (1868). 202. Id. at 725–26. 203. SCHWARTZ, supra note 168, at 127; see generally MARK H NEELY, JR., THE FATE OF LIBERTY (1991) (explaining Lincoln’s willingness to suspend civil liberties once he saw there would be no political consequence). 204. SCHWARTZ, supra note 168, at 128. 205. See generally NEELY, supra note 203 (describing Justice Taney’s disagreement with Lincoln). 206. Id. at 10. 207. Ex parte Merryman, 17 F. Cas. 144 (C.C.Md. 1861) (No. 9,487). 26St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 667 Merryman should be set free.208  It has been argued that Lincoln defied the Chief Justice; however, that is not necessarily the case.209  Merryman was remanded to civil authorities, eventually released, and never tried for treason.  Certainly, actions taken while defending the nation during a civil war were sui generis and perhaps cannot be compared to actions taken while the nation is at peace.  However, as Lincoln came to realize, even a justified suspension of civil liberties during war time may be difficult to revoke subsequently in peacetime. Regardless of whether secession and the Civil War constitutes defiance of law, certain incidents which occurred during the war, such as the New York Draft Riots of 1863,210 certainly qualify.  The draft was instituted in New York City in 1863.211  The population of the city was heavily Irish, most employed as laborers.212  The Irish working class engaged in violent rioting which soon turned into a race riot.213  Several African Americans were lynched and an African American orphanage was burned down.214  There is a dispute over how many were killed during the riots, with estimates ranging from 120 to 2000.215  President Lincoln sent federal troops to quell the riots from the forces assembled at Gettysburg, where the battle occurred almost contemporaneously with the riots.216  To some extent, the New York City Draft Riots were a protest against the new Republican government in Washington, D.C., which was perceived as overreaching and unduly coercive.217  The draft riots were an example of a common occurrence: a protest or riot started with one object (the draft) which is then turned to a different subject (racial animus).  The New York Draft Riots were a shameful incident in American history.  208. Id. at 152. 209. See Seth Barrett Tillman, Ex Parte Merryman: Myth History and Scholarship, 224 MIL. L. REV. 481, 498–99 (2016) (arguing President Lincoln did not defy Chief Justice Taney). 210. See generally JAMES MCPHERSON, ORDEAL BY FIRE: THE CIVIL WAR AND RECONSTRUCTION (1982) (chronicling the events of the draft resistance). 211. Id. at 357. 212. GILJE, supra note 47, at 123. 213. DAVID M. BARNES, THE DRAFT RIOTS IN NEW YORK, JULY 1863, at 7, 107 (1863). 214. MCPHERSON, supra note 210, at 357. 215. Compare id. at 358 (explaining estimates have scaled between 120 and 1,200 killed), with HERBERT ASHBURY, THE GANGS OF NEW YORK 169 (1928) (providing 2,000 casualties as a “conservative” estimate). 216. IVER BERNSTEIN, THE NEW YORK CITY DRAFT RIOTS: THEIR SIGNIFICANCE FOR AMERICAN SOCIETY AND POLITICS IN THE AGE OF THE CIVIL WAR 3 (1990). 217. Id. at 10–11. 27Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  668 ST. MARY’S LAW JOURNAL [Vol. 55:641 IX.    RESISTANCE TO RECONSTRUCTION Following the end of the Civil War, the Republican Congress embarked on Reconstruction––an effort to put the nation back together and to protect the rights of recently freed slaves in the South.218  Reconstruction was extraordinarily unpopular in the South and provoked significant defiance, including violent resistance.219  In response to efforts to accord former slaves legal protection and civil rights, the Ku Klux Klan was formed to resist these changes.220  Less violently, southern states enacted Black Codes to deprive recently freed slaves of virtually all civil rights.221  In response, the Reconstruction Congress passed several laws and ultimately drafted the Fourteenth Amendment.222  Most of the activities of the Klan were clearly in defiance of law.  Intimidation, terrorism, and murder223 can scarcely be defended as legitimate means of protest in a law-abiding society.  Nevertheless, the Klan’s activities are an example of what can occur when a significant segment of the public loses confidence and respect for the law.  The Reconstruction Congress drafted the Fifteenth Amendment, guaranteeing the right to vote without racial discrimination.224  However, this was readily evaded by various devices such as the poll tax, literacy tests, grandfather clauses, and White primaries.225  The most infamous incident of White resistance to Reconstruction was the Colfax Massacre of 1873.226  Following a disputed election in Grant Parish, Louisiana, in which charges of election fraud circulated, Black Republicans surrounded the Colfax courthouse to protect the newly elected Republican officials.227  A mob of paramilitary White men gathered  218. Eric Foner, The End of Reconstruction, BRITANNICA,  https://www.britannica.com/event/Reconstruction-United-States-history/The-end-of-Reconstruction [https://perma.cc/N7F7-78UZ]. 219. Id. 220. BROGAN, supra note 119, at 362, 378. 221. Id. 222. Foner, supra note 218. 223. BROGAN, supra note 119, at 378. 224. Farrell Evans, How Jim Crow-Era Laws Suppressed the African American Vote for Generations, HIST. (Aug. 8, 2023), https://www.history.com/news/jim-crow-laws-black-vote  [https://perma.cc/A62F-869A]. 225. Id. 226. See generally CHARLES LANE, THE DAY FREEDOM DIED: THE COLFAX MASSACRE, THE SUPREME COURT, AND THE BETRAYAL OF RECONSTRUCTION (2008) (contextualizing the Colfax Massacre). 227. LEEANNA KEITH, THE COLFAX MASSACRE: THE UNTOLD STORY OF BLACK POWER, WHITE TERROR, AND THE DEATH OF RECONSTRUCTION 100 (2008). 28St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 669 outside.228  The mob stormed the courthouse killing at least fifty Black defenders.229  A truce was called.230  A White man was shot and killed.231  A dispute ensued over who was responsible.232  At that point, the mob killed the Black men hiding in the courthouse, and those attempting to flee.233  Federal troops arrived to restore peace.234  Ninety-six men were indicted for violating the federal Enforcement Act of 1870 for attempting to deprive African Americans of their civil rights.235  In an appeal to the Supreme Court in United States v. Cruikshank,236 the Court held Congress lacked the authority to reach private violence and the Enforcement Act required specific allegations of deprivation of rights on account of race.237  The Colfax Massacre was the single greatest act of violence committed in resistance to reconstruction.238 Perhaps the sudden change from slavery to civil rights, on the heels of the defeat in the Civil War, was too much for the South to accommodate in a short period of time.  Perhaps violent resistance was inevitable.  Society, including the federal courts, was not prepared after Reconstruction ended to give former slaves complete civil rights protection. X.    PERSECUTION OF THE MORMONS The basic beliefs of the Mormon religion, established in the early part of the nineteenth century, seemed strange and alien to many in the public, especially the belief in polygamy.239  From the outset, the Mormons and their founder and prophet Joseph Smith were met with violence.240  In 1844,  228. Id. at 96. 229. Id. at 104–05, 109. 230. Id. at 103. 231. Id. at 102. 232. Id. 233. LANE, supra note 226, at 102–03. 234. The Colfax Massacre, HIST., https://www.history.com/this-day-in-history/colfax-massacre-louisiana [https://perma.cc/8JMH-HGDF]. 235. Id. 236. United States v. Cruikshank, 92 U.S. 542 (1875). 237. Id. at 554, 559. 238. ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at 437 (1988); see GILJE, supra note 47, at 94–108 (describing other incidents of racial intimidation and violence that occurred in the wake of Reconstruction). 239. BROGAN, supra note 119, at 240. 240. Id. at 239–41. 29Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  670 ST. MARY’S LAW JOURNAL [Vol. 55:641 a mob in Illinois lynched Smith.241  The Mormons faced violent attacks and responded in kind.242  Thus, both the persecutors and the Mormons defied the law.  Following Smith’s death, Brigham Young, the new leader of the Mormons, decided that the church needed to move farther West.  They left Illinois and traveled to Utah to escape persecution, which indeed they did.243  The church grew in the Utah territory, which the Mormons called Deseret.244  With Young’s blessing, the Mormons continued to respond violently to both insiders and outsiders.245  Utah had filed petitions for statehood four times.246  The obstacle was the church’s endorsement of polygamy.247  In Reynolds v. United States,248 the Supreme Court held that the Free Exercise Clause of the First Amendment did not protect polygamy.249  To attain statehood for Utah, the Mormon Church was forced to alter its belief that God required polygamy, which it did.250  The fact that the Federal Government coerced the Mormon Church into changing its beliefs stands as one of the greatest affronts to freedom of religion in American history. XI.    LABOR WARS Starting in the 1870s and extending at least for a period of fifty to sixty years, there were a series of violent labor disputes, resulting in the destruction of property and the loss of many lives.251  There were thousands of such incidents.252  This Article will only discuss the most prominent examples.  Although each has its own peculiar features, nevertheless, a familiar pattern developed.  The laborers (mostly European immigrants) would call a strike over low pay, substandard working conditions, or perhaps  241. Timeline: The Early History of the Mormons, PBS AM. EXPERIENCE,  https://www.pbs.org/wgbh/americanexperience/features/mormons-timeline/ [https://perma.cc/4X9F-R7D9] [hereinafter Timeline]. 242. BROGAN, supra note 119, at 241; GILJE, supra note 47, at 77–79. 243. Timeline, supra note 241. 244. Id. 245. Id. 246. Leonard James Arrington & Gregory Lewis McNamee, Statehood of Utah, BRITANNICA, https://www.britannica.com/place/Utah/Statehood [https://perma.cc/RD7U-VMQA]. 247. Timeline, supra note 241. 248. Reynolds v. United States, 98 U.S. 145 (1878). 249. Id. at 168. 250. Arrington & McNamee, supra note 246. 251. GILJE, supra note 47, at 117. 252. Id. at 113–20. 30St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 671 both.253  The workers would leave the employer’s premise.254  The employer would then lock the workers out and replace them with strikebreakers, often African Americans.255  The striking workers would attack the strikebreakers, and the employers would call in security, usually Pinkerton detectives, to protect the strikebreakers.  At that point, a gun battle would break out between the strikers and the Pinkertons.  Many would be killed on both sides.  Then, either the Governor would send in the National Guard, or the President would send in federal troops to stop the violence.  The workers would return to work having accomplished little or nothing.  Initially, the public tended to sympathize with the employers over the strikers.256  This shifted over time, and the employees eventually became objects of public sympathy, as their complaints were perceived as valid.257  Initially, the strikers were considered unsympathetic because they destroyed property and engaged in violence to achieve their ends.  The fact that most workers tended to be eastern or southern European immigrants or Irish did not increase their popularity with the public.258  Also, the fact that their strikes were influenced or endorsed by well-known and despised radical groups, including socialists, communists, anarchists, and the International Workers of the World (IWW), known as the Wobblies, didn’t help the public perception of the labor movement.259 Eventually, the right to form a union and to strike was embodied by federal law.260  The strikers achieved their goals, but not necessarily due to the pressure they brought to bear through their strikes.  By the right to organize unions and the duty of employers to negotiate in good faith, rule of law values eventually prevailed in the labor context. Strikes continued to occur, but they became less violent, both in terms of damage to property and loss of life.261  This may be partially attributed to the labor movement now enjoying greater legal protection, and a shift in societal values that strongly condemned violence, particularly murder.  253. Id. at 117–18. 254. Id. 255. Id. at 117. 256. Id. at 122–23. 257. Id. at 123. 258. Id. at 123–30. 259. Id. at 130–38. 260. National Labor Relations Act, 29 U.S.C. §§ 151–69. 261. James Gregory, Strikes & Unions, CIV. RTS. & LAB. HIST. CONSORTIUM, UNIV. OF WASH., https://depts.washington.edu/depress/strikes_unions.shtml [https://perma.cc/C7FN-RRLN]. 31Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  672 ST. MARY’S LAW JOURNAL [Vol. 55:641 A.    The Molly Maguires The Molly Maguires were a secret and violent terrorist organization that originated in Ireland but was later re-instituted in the anthracite coal mining region of Pennsylvania to support Irish coal miners.262  The Coal Miners Union aimed to advocate for better wages and safer working conditions through peaceful means.263  The Molly Maguires attempted to achieve the same goals through violence and murder.264  Due to the secretive nature of the Molly Maguires, it is unclear how much overlap there was between the miners’ union and the Molly Maguires.265  In 1876, in response to layoffs in the Pennsylvania coal mining industry, the miners went on strike, and the Molly Maguires engaged in violent acts against the mining companies.266  A Pinkerton Detective, James McParlan, infiltrated the Molly Maguires.267  Based on the evidence he uncovered, several of the members were executed.268  Some doubt has been cast on the guilt of at least some of the men who were convicted and executed, with one being posthumously pardoned by the governor of Pennsylvania.269  This stands as an example of a violent terrorist organization defying the law, at least for a while. B.    The Railroad Strike of 1877 The Great Railroad Strike of 1877 began in Martinsburg, West Virginia, in response to wage cuts by the B&O Railroad but quickly spread across the Eastern Seaboard.270  Many were shot and killed in Baltimore and Pittsburgh as federal troops and armed vigilantes battled with the workers who, in their protests, destroyed railroad property.271  Riots and violence also occurred in  262. KEVIN KENNY, MAKING SENSE OF THE MOLLY MAGUIRES 3 (1998); LOUIS ADAMIC, DYNAMITE: THE STORY OF CLASS VIOLENCE IN AMERICA 11–18 (2008); ARTHUR CONAN DOYLE, THE VALLEY OF FEAR (1915) (basing his story on the Molly Maguires in Pennsylvania). 263. KENNY, supra note 262, at 3. 264. Id. 265. Id. at 4. 266. BROGAN, supra note 119, at 429. 267. KENNY, supra note 262, at 3. 268. Id. 269. “Molly Maguires” Records, PA. HIST. & MUSEUM COMM’N,  https://www.phmc.pa.gov/Archives/Research-Online/Pages/Molly-Maguires.aspx [https://perma.cc/7BFP-8QQ2]. 270. BROGAN, supra note 119, at 429. 271. EDWARD WINSLOW MARTIN, THE HISTORY OF THE GREAT RIOTS 21, 23, 118–19 (1877). 32St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 673 Albany, New York, Philadelphia, Reading, Scranton, and St. Louis.272  The company brought in Pinkerton detectives to protect replacement workers.273  The striking workers attacked the Pinkerton detectives and a gun battle erupted.274  The Pennsylvania militia was brought in to suppress the strike.275  It was a violent strike resulting in great destruction of railroad property.276  It has been characterized as “the most spectacular and widespread strike in American history.”277  It was spontaneous, unorganized, and driven by desperation.278  As it unfolded, it involved defiance of law by both the workers and the companies. C.    The Haymarket Affair One of the most momentous incidents in the history of labor violence was the Haymarket Affair, as it has come to be known.279  Chicago became the epicenter for labor violence because it was a major railroad and manufacturing center and because many of the workers were southern and eastern European immigrants, partial to radical dogma.280  Workers at the McCormick Plant in Chicago went on strike for an eight-hour work day.281  The company brought in a security force that opened fire on the striking workers, killing several.282  A rally was held in Haymarket Square the following evening to protest McCormick’s violent action and to support the eight-hour workday movement.283  A squad of 300 police officers converged on the square to break up the rally,284 which was probably a major error.  Someone threw a bomb, killing at least one police officer.285  Six more police  272. Joseph Adamczyk, Great Railroad Strike of 1877, BRITANNICA (Feb. 16, 2024), https://www.britannica.com/topic/Great-Railroad-Strike-of-1877 [https://perma.cc/UM6W-T3D5]; ERNEST KIRSCHTEN, CATFISH AND CRYSTAL 363–75 (1960). 273. PAUL KRAUSE, THE BATTLE FOR HOMESTEAD, 1880–1892: POLITICS, CULTURE, AND STEEL 3 (1992). 274. Id. 275. GILJE, supra note 47, at 117. 276. See id. at 118 (describing the fights that occurred between the strikers and the militia). 277. Id. at 117. 278. ADAMIC, supra note 262, at 35. 279. See generally PAUL AVRICH, THE HAYMARKET TRAGEDY (1984) (detailing the pivotal Haymarket Affair which was spurred by a police officer firing into a crowd); JAMES GREEN, DEATH IN THE HAYMARKET (2006) (presenting analysis on the Haymarket strike). 280. See generally AVRICH, supra note 279 (describing the focus put on Chicago). 281. ADAMIC, supra note 262, at 68. 282. GREEN, supra note 279, at 170. 283. AVRICH, supra note 279, at xi. 284. Id. 285. Id. 33Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  674 ST. MARY’S LAW JOURNAL [Vol. 55:641 officers were killed in the ensuing gunfight.286  Eight anarchists were arrested, tried, and sentenced to death for having delivered speeches that may have encouraged the bomb thrower (who was never identified).287  Subsequent investigations have shown that none of the men arrested, convicted, and executed had anything to do with the bomb.288  The Haymarket Affair became a rallying cry for the labor movement but a very polarizing incident in the struggle between capital and labor.289 D.    The Homestead Steel Strike The 1892 strike at the Homestead Steel mill owned by Andrew Carnegie was a major incident in the development of labor relations in the United States.290  Due to an economic downturn resulting in a decreased demand for steel, Homestead cut workers’ wages.291  The workers went on strike, and the company locked them out to then replace them with strikebreakers.292  The striking workers attacked the strikebreakers.293  The company brought in Pinkerton detectives, who arrived by boat to protect the strikebreakers.294  A gun battle broke out between the striking workers and the Pinkertons.295  The striking workers prevailed and forced the Pinkertons to exit through a brutal gauntlet.296  The strike was crushed when the National Guard was called in to restore order. Eleven were killed in the gun battle.297  The strike ended after Alexander Berkman, a New York anarchist, attempted to assassinate Henry Frick, the head of Homestead Steel.298  The strike failed and the union was destroyed.299  As a result of the incident, several states passed laws prohibiting companies from hiring security forces to break strikes; however, unionization of the steel industry was set back for decades.300   286. ADAMIC, supra note 262, at 74. 287. Id. at 76–77. 288. AVRICH, supra note 279, at xi. 289. Id. at xi–xii. 290. KRAUSE, supra note 273, at 3. 291. ADAMIC, supra note 262, at 104. 292. KRAUSE, supra note 273, at 3. 293. Id. 294. Id. 295. Id. 296. ADAMIC, supra note 262, at 105. 297. KRAUSE, supra note 273, at 3–4. 298. Id. at 3. 299. ADAMIC, supra note 262, at 105. 300. KRAUSE, supra note 273, at 4–5. 34St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 675 Both sides acted in defiance of law by resorting to a gun battle, which was clearly an unacceptable method of settling the dispute. E.    The Pullman Strike In 1894, a strike was called in the Pullman plant in Chicago.301  Pullman owned a company town where many of the workers lived.302  When business declined, Pullman changed salaries for workers to a piecework system.303  The workers went on strike, disabling rail transportation nationwide.304  President Cleveland sent in federal troops to break up the strike.305  The strikers called for a boycott of any train carrying a Pullman car, which stunted rail traffic nationwide.306  With the arrival of federal troops, a mob assembled, destroying Pullman and railroad property.307  The violence and destruction spread throughout the Midwest and West.308  In view of the violence, a federal judge in Chicago entered an injunction ordering the union to cease interfering with rail traffic and to cease urging workers to strike.309  Eugene V. Debs, a leader of the union, was charged with contempt for violating the injunction, was convicted, and sent to prison for six months.310  The equitable authority to issue the injunction and the contempt conviction of Debs for violating it were upheld by a unanimous Supreme Court in 1895.311  Following the Debs312 case, the labor injunction became ubiquitous until Congress prohibited it in 1932 in the Norris-LaGuardia Act.313  At least thirty people were killed in the violence accompanying the Pullman Strike.314  This strike was the largest and most violent labor strike in United States history at the time, but certainly not the last.  301. DAVID RAY PAPKE, THE PULLMAN CASE 2 (1999); see generally ADAMIC, supra note 262 (explaining the events of the Pullman strike). 302. ADAMIC, supra note 262, at 116. 303. PAPKE, supra note 301, at 16. 304. ADAMIC, supra note 262, at 118. 305. PAPKE, supra note 301, at 20. 306. Id. at 24. 307. Id. at 33. 308. Id. at 34. 309. Id. at 41. 310. Id. at 38–50. 311. In re Debs, 158 U.S. 564, 599–600 (1895). 312. In re Debs, 158 U.S. 564 (1895). 313. PAPKE, supra note 301, at 98. 314. Id. at 33, 35. 35Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  676 ST. MARY’S LAW JOURNAL [Vol. 55:641 F.    Idaho Mine Wars In 1892, in Coeur d’Alene, Idaho, a gun battle broke out between striking miners and mine guards hired by the mining company.315  The strike was called after the miners’ already low wages were cut further.316  The miners killed two guards and forced sixty others to surrender.317  The Governor declared martial law and sent in the National Guard to restore order.318  Several miners were convicted of various offenses and imprisoned.319  Seven years later, the mining company’s president fired seventeen miners suspected of being union members.320  Miners then hijacked a train, loaded it with dynamite, and used the dynamite to blow up the mine, killing two people.321  Quite obviously, violence by both sides, including destruction of property and murder, constituted defiance of law for which there was no excuse. G.    Ludlow The wars between the miners and the mine owners spread through Colorado.322  The miners were supported by the IWW, a very violent union.323  The miners went on strike primarily for safer working conditions.324  The mine owners locked the miners out and brought in strikebreakers to keep the mines in operation.325  The miners and their families set up tent cities to live in, especially in Ludlow in south-central Colorado.326  In response to a strike called by the miners, the company called in the National Guard which was eventually composed at least partially of  315. See J. ANTHONY LUKAS, BIG TROUBLE: A MURDER IN A SMALL WESTERN TOWN SETS OFF A STRUGGLE FOR THE SOUL OF AMERICA 134 (1997) (explaining the beginning of the Idaho mine conflict; see also ADAMIC, supra note 262, at 124–27 (expanding on the Idaho wars). 316. LUKAS, supra note 315, at 132. 317. Id. at 134. 318. Id. 319. Id. at 135. 320. Id. at 111. 321. Id. at 112–14; Matt McCune, Bunker Hill and the Sullivan Mill Explosion, INTERMOUNTAIN HISTS. (May 16, 2023), https://www.intermountainhistories.org/items/show/118  [https://perma.cc/636G-HURU]. 322. THOMAS G. ANDREWS, KILLING FOR COAL: AMERICA’S DEADLIEST LABOR WAR 1 (2010). 323. ADAMIC, supra note 262, at 158. 324. ANDREWS, supra note 322, at 9. 325. Id. at 7. 326. Id. at 1. 36St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 677 mine guards employed by the mine owners.327  The guard brought in Gatling guns and opened fire.328  Twenty were killed, including women and children who were huddled in depressions beneath the tents.329  Following the massacre, the miners destroyed company property and engaged in violence in retaliation.330  The massacre spoiled the reputation of mine owner, John D. Rockefeller, Jr.331  President Wilson sent in federal troops to end the strike.332  The Ludlow massacre became an iconic incident in the labor movement.333  The site of the massacre is now a national historic site.334  The defiance of law was initially by the company and the government, but eventually, the miners in retaliation. H.    Eastern Coal Wars Labor violence, especially in the coal industry, continued for the next forty years.335  All parties had some share of the blame.  Workers went on strike for better working conditions,336 sometimes in violation of local law and federal court injunctions.  In 1897, a labor march in Lattimer, Pennsylvania, led to violence.337  The local sheriff ordered the marchers to disperse.338  They continued the march and the police opened fire, killing nineteen immigrant miners.339  The sheriff was charged, tried, and acquitted.340  The incident became known as the Lattimer Massacre.341  327. Id. 328. Id. at 12. 329. ADAMIC, supra note 262, at 185–87 (2008); see generally ANDREWS, supra note 322 (describing the Ludlow massacre); see also Colorado Experience: Ludlow Massacre (PBS television broadcast Apr. 18, 2013) (explaining many of the facts in the Ludlow massacre come from the documentary film Colorado Experience-The Ludlow Massacre). 330. See Colorado Experience: Ludlow Massacre, supra note 329 (outlining facts of the Ludlow massacre). 331. ANDREWS, supra note 322, at 9. 332. Colorado Experience: Ludlow Massacre, supra note 329. 333. Id. 334. Id. 335. Peter A. Shackel, How a 1897 Massacre of Pennsylvania Coal Miners Morphed from a Galvanizing Crisis to Forgotten History, SMITHSONIAN MAG. (Mar. 13, 2019),  https://www.smithsonianmag.com/history/how-1897-massacre-pennsylvania-coal-miners-morphed-galvanizing-crisis-forgotten-history-180971695/ [https://perma.cc/DU8H-CHDN]. 336. Id. 337. Id. 338. Id. 339. Id. 340. Id. 341. Id. 37Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  678 ST. MARY’S LAW JOURNAL [Vol. 55:641 The following year, when the Chicago-Virden Coal Company attempted to replace striking workers with African Americans, the striking workers opened fire on the train carrying the replacements.342  Many on both sides were shot.  Twelve persons were killed.343  The Governor called in the National Guard.344  The incident became known as The Battle of Virden.345 In 1902, when anthracite coal miners in Pennsylvania called a strike for, among other things, higher wages, President Theodore Roosevelt threatened to seize the coal mines, forcing the owners to negotiate.346  Although the strike was ultimately settled with a victory for the union, in the interim, several people, mostly strikers, were killed in battles between the strikers and the police.347 Yet another violent incident in the mining community occurred in Matewan, West Virginia.348  There, a strike was called over an attempt to obtain recognition of the United Mineworkers of America (UMW) union.349  Later, in 1920, four people were killed in a gun battle between miners and sheriffs in McDowell County.350  In 1921, hundreds of miners attacked coal mines along the Mingo River in West Virginia.351  The Governor declared martial law and called in close to three thousand officers.352  A force of  vigilantes also appeared.353  A miners’ march was assembled in Logan County, West Virginia, to come to the aid of imprisoned miners in Mingo County.354  The miners would have to march through Logan County,  342. See generally David Markwell, A Turning Point: The Lasting Impact of the 1898 Virden Mine Riot, 99 J. ILL. STATE HIST. SOC. 211 (2006) (discussing the Virden mine riot in greater detail). 343. Id. at 218. 344. Id. 345. Id. at 221. 346. See ROBERT J. CORNELL, THE ANTHRACITE COAL STRIKE OF 1902, at 110 (1957) (describing Roosevelt’s brief foray into becoming involved in the continued difficulties laborers faced with low wages, irregular employment, and hazardous working conditions). 347. Id. at 153. 348. Lorraine Boissoneault, The Coal Mining Massacre America Forgot, SMITHSONIAN MAG., (Apr. 25, 2017), https://www.smithsonianmag.com/history/forgotten-matewan-massacre-was-epicenter-20th-century-mine-wars-180963026/ [https://perma.cc/CAE8-2V2F]. 349. Id. 350. Id. 351. Id. 352. Evan Andrews, The Battle of Blair Mountain, HIST. (Sept. 1, 2018), https://www.history.com/news/americas-largest-labor-uprising-the-battle-of-blair-mountain [https://perma.cc/6KUH-AKW3]. 353. Id. 354. Boissoneault, supra note 348.  The marchers also intended to seek retribution for the murder of Sheriff Sid Hatfield.  LON SAVAGE, THUNDER IN THE MOUNTAINS 73, 97 (1990). 38St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 679 where the local sheriff and armed men awaited their arrival.355  President Harding issued a proclamation ordering both sides to disperse.356  Both sides ignored the proclamation and fighting commenced.357  The Army arrived and dispersed the combatants.358  It is believed that as many as sixteen were killed.359 In 1922, members of the UMW in Williamson County, Illinois assaulted a group of non-union workers resulting in a lengthy gun battle in which three were killed.360  Nineteen of the strike breakers who surrendered were killed in cold blood by union members.361  This incident became known as the Herrin Massacre.362  As one author noted, “No episode in the history of American industrial warfare has ever shocked public opinion more violently than the Herrin Massacre.”363 In 1932, Congress passed and President Hoover signed the Norris-LaGuardia Act, which guaranteed workers the right to form and join a union and prohibited federal judges from enjoining non-violent strikes.364  These were the issues that gave rise to much of the labor violence over the past several decades.365  Further federal labor legislation protecting the rights of workers would follow.366 I.    The Bombing Campaign Over a five-year period beginning in 1906, a bombing campaign sponsored by the International Association of Bridge Structural and Iron  355. Boissoneault, supra note 348. 356. Battle of Blair Mountain: Topics in Chronicling America, LIBR. OF CONG., https://guides.loc.gov/chronicling-america-blair-mountain [https://perma.cc/R55M-XEVY]. 357. Id. 358. Boissoneault, supra note 348. 359. John Raby, ‘Matewan Massacre’ a Century Ago Embodied Miners’ Struggles, AP NEWS (May 18, 2020, 10:13 AM), https://apnews.com/article/34af5e97aaa1241aa3dadf669d43686b  [https://perma.cc/N2FJ-KJ94]. 360. See PAUL M. ANGLE, BLOODY WILLIAMSON: A CHAPTER IN AMERICAN LAWLESSNESS 4–8 (1952) (describing the gun battle and resulting casualties). 361. Id. at 10. 362. Id. at 28. 363. Id.  President Harding condemned the massacre as “‘a shocking crime’ . . . ‘butchery . . . wrought in madness . . . .,’ and . . . ‘barbarity.’”  Id. at 34.  Williamson County became a national disgrace.  See id. (acknowledging President Harding’s condemnation of the massacre and his labeling of the event as a disgrace). 364. Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1932) (codified as amended at 29 U.S.C. § 101). 365. Id. 366. Id. 39Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  680 ST. MARY’S LAW JOURNAL [Vol. 55:641 Workers focused on construction sites which hired non-union workers.367  At least one hundred structures were destroyed in different states.368  Perhaps the most extreme event connected with the bombing campaign involved the bombing of the offices of the Los Angeles Times.369  Harrison Gray-Otis, the publisher of the Times, was a vigorous opponent of labor unions.370  On October 1, 1910, a bomb was detonated at the office of the Times killing twenty-one people and injuring many others.371  It was alleged that there was no bomb at all and that the explosion was attributable to a gas leak.372  The McNamara brothers, officers of the Iron Workers Union, were charged with the bombing.373  The McNamaras, in somewhat of a shock, pled guilty to the bombing.374  Their attorney, Clarence Darrow, declared that a guilty plea was the only way to save the McNamaras from execution.375  However, it was rumored at the time that the real reason for the surprising guilty pleas was to protect Darrow from conviction for jury tampering.376  Several more bombs were set off over the next several months.377  This may be partially attributable by the infiltration of the labor movement by organized crime.378  Many—including labor leader Samuel Gompers—condemned the bombing.379  The guilty pleas and convictions in the bombing cases went a long way towards domesticating the labor movement.  Only the IWW remained committed to violence.380  367. ADAMIC, supra note 262, at 188–189, 196, 200. 368. See id. at 196–97 (“[T]he Iron Workers’ international union dynamited about 150 buildings and bridges . . . .”). 369. Id. at 206. 370. Id. at 203. 371. See id. at 212 (characterizing the damage caused by the bombing); Los Angeles Times Bombing (1910): Topics in Chronicling America, LIBR. OF CONG., https://guides.loc.gov/chronicling-america-los-angeles-times-bombing [https://perma.cc/Y7NM-ZSB8]. 372. See ADAMIC, supra note 262, at 209, 212 (identifying the gas-explosion theory). 373. Id. at 214–15. 374. Id. at 229. 375. Id. at 232. 376. Id. at 233, 239. 377. See id. at 244–46, 253 (describing “a nationwide dynamite conspiracy”). 378. See id. at 253, 349 (explaining how “organized labor and organized crime” were intertwined). 379. See id. at 252 (“So Gompers pleaded with the ‘gorillas’ to refrain from dynamite in the future, and for a few years he was heeded.”). 380. Id. at 164. 40St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 681 J.    Bread and Roses Strike In 1912, in Lawrence, Massachusetts, workers, mostly women and immigrants, went on strike against a wage cut.381  The IWW arrived to organize and lead the strike and the mayor called out the militia to maintain order.382  This became known as the “Bread and Roses Strike.”383  Strikers engaged in violence against the mill, slashing the machines.384  The police turned fire hoses on the strikers.385  Two strikers were killed in the escalating violence.386  Parents attempted to send their children from the city, however, local officials intervened to prevent them from leaving.387  Due to the bad publicity, Congress held hearings on the poor working conditions.388  Eventually, the dispute was settled, and it is considered a significant victory for the labor movement.389 K.    Steel Strike of 1919 In 1919, steelworkers in Gary, Indiana went on strike for higher wages leading to a nationwide steel strike.390  Martial law was declared in Gary, and the United States Army took control of the city.391  The strike was broken  381. Christopher Klein, The Strike that Shook America, HIST. (Nov. 26, 2019), https://www.history.com/news/the-strike-that-shook-america [https://perma.cc/RRR3-4GJ9]; see also BRUCE WATSON, BREAD AND ROSES: MILLS, MIGRANTS, AND THE STRUGGLE FOR THE AMERICAN DREAM 1–4 (2006) (analyzing the history of the strike); see generally ROBERT FORRANT & SUSAN GRABSKI, LAWRENCE AND THE 1912 BREAD AND ROSES STRIKE (2013) (containing primary sources from the strike). 382. See FORRANT & GRABSKI, supra note 381, at 8, 40–41, 67 (detailing the actions of IWW organizer Joseph Ettor in galvanizing the Lawrence factory workers); Emma Goldman, The Industrial Workers of the World, PBS AM. EXPERIENCE,  https://www.pbs.org/wgbh/americanexperience/features/goldman-industrial-workers-world/ [https://perma.cc/5RG3-2NTH] (describing the IWW as “a union based on the principles of Marxist conflict and the indigenous American philosophy of industrial unionism”). 383. Klein, supra note 381.  But see WATSON, supra note 381, at 3 (“Through the mysterious process that propagates fable and folk song, what happened in Lawrence is now known as the ‘Bread and Roses’ strike, although the slogan was probably never used during the uprising.”). 384. Klein, supra note 381. 385. FORRANT & GRABSKI, supra note 381, at 44. 386. Id. at 66, 69. 387. Id. at 75, 82. 388. Id. at 85, 88. 389. Klein, supra note 381. 390. Erin Blakemore, Why the Great Steel Strike of 1919 Was One of Labor’s Biggest Failures, HIST. (Sept. 23, 2019), https://www.history.com/news/steel-strike-of-1919-defeat  [https://perma.cc/NSW3-QUFB] [hereinafter Blakemore, The Great Steel Strike]. 391. Id.; Gary Pub. Libr. & Jennifer Guiliano, The Steel Strike of 1919 in Gary,   41Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  682 ST. MARY’S LAW JOURNAL [Vol. 55:641 with a “crushing defeat” for the labor movement.392  Concerns that the strike was a product of foreign Bolshevism as well as racial prejudice against Black strikebreakers contributed to the failure of the strike.393 L.    Republic Steel Strike of 1937 On Memorial Day 1937, workers at Republic Steel in Chicago protested the company’s refusal to sign a union contract.394  The bigger steel mills had signed the contract.395  This became known as the Little Steel Strike.396  The police were called in to disperse the protestors, and in the process, ten workers were shot and killed.397  This was an instance in which the police brutally murdered peaceful protestors.398  The company signed the contract and the strikers returned to work.399  The strike gave rise to President Franklin D. Roosevelt’s famous quotation from Shakespeare’s Romeo and Juliet: “A plague on both your houses.”400 M.    Flint Sit-Down Strike The same year, workers at the Flint, Michigan General Motors plant engaged in a sit-down strike at the plant to preclude the company from bringing in replacement workers.401  The strike continued for forty-four days.402  The company obtained an injunction requiring the workers to vacate the plant.403  Initially, the company attempted to retake the plant with security guards, resulting in a violent battle between the workers and the  DISCOVER IND. (Nov. 6, 2021)  https://publichistory.iupui.edu/items/show/603#:~:text=By%20the%20end%20of%20the,less%20than%20a%20month%20later [https://perma.cc/3KME-2F4T]. 392. Blakemore, The Great Steel Strike, supra note 390. 393. Id. 394. AHMED WHITE, THE LAST GREAT STRIKE: LITTLE STEEL, THE CIO, AND THE STRUGGLE FOR LABOR RIGHTS IN NEW DEAL AMERICA 3–4 (2016). 395. Id. at 102. 396. Id. at 3–4. 397. Id. at 134, 136; Carol Quirke, Reframing Chicago’s Memorial Day Massacre, May 30, 1937, 60 AM. Q. 129, 134 (2008). 398. See Quirke, supra note 397, at 132–33 (“Most in the crowd were peaceful . . . .”). 399. WHITE, supra note 394, at 272. 400. Milton J. Bracker, In Strike, Roosevelt Feels; Blasts Shut Cambria Plant, N.Y. TIMES, June 30, 1937, at 1 (quoting WILLIAM SHAKESPEARE, ROMEO AND JULIET). 401. Erin Blakemore, The 1936 Sit-Down Strike that Shook the Auto Industry, HIST. (Sept. 14, 2023) https://www.history.com/news/flint-sit-down-strike-general-motors-uaw [https://perma.cc/ZLG9-7WPM]. 402. Id. 403. Id. 42St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 683 guards.404  Eventually, Governor Murphy sent the National Guard in as a peace keeping force, leading to a settlement favoring labor by recognizing the union, agreeing not to punish the striking workers and to raise wages.405  This was seen as a significant victory for labor, more attributable to the depression and the New Deal than a response to violent labor confrontations which had occurred for a sixty-year period with slight victories for the labor movement.406 N.    Labor Violence Over a lengthy period, violence continually erupted in the midst of labor strikes.407  Both sides must bear some of the blame.  The workers had little in the way of legal protection.408  The states and communities often overreacted to peaceful demonstrations with a show of force.409  The demonstrators were only too ready to respond violently.410  Positions on both sides hardened and many were itching for a fight.411  Although there was a large amount of defiance of law by the workers, employers, and government officials, ultimately, the workers and the unions obtained the legal protection to organize and engage in collective bargaining.412  This was an instance in which years of defiance and violent outbreaks seemed to lead to positive results, although the causal connection between the strikes and the legislation was less than clear.   404. Id. 405. Id. 406. See id. (“And labor would never be the same”). 407. See generally Labor Wars in the U.S., PBS AM. EXPERIENCE  https://www.pbs.org/wgbh/americanexperience/features/theminewars-labor-wars-us/ [https://perma.cc/2YKY-EQ8L] (discussing various instances of violence related to labor from 1874 to 1989). 408. See id. (claiming the workers sought “safety regulations, better wages, fewer hours, and freedom of speech and assembly”). 409. See, e.g., Ben Railton, Considering History: When Labor Strikes Were Met with Violence 100 Years Ago, SATURDAY EVENING POST (Oct. 19, 2021),  https://www.saturdayeveningpost.com/2021/10/considering-history-when-labor-strikes-were-met-with-violence-100-years-ago/ [https:perma.cc/9RWX-5YPA] (“Those attempts at unionization were consistently opposed by repressive and violent responses . . . .”). 410. See Philip Taft & Philip Ross, American Labor Violence: Its Causes, Character, and Outcome, in VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 221 (Hugh Davis Graham & Ted Robert Gurr eds., 1969) (describing violence by “pickets and sympathizers” during labor disputes). 411. See id. at 222 (characterizing some labor violence as unavoidable). 412. Collective Bargaining Rights, NLRB, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/collective-bargaining-rights [https://perma.cc/4BHD-MLCU]. 43Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  684 ST. MARY’S LAW JOURNAL [Vol. 55:641 Even after workers and unions obtained legal protection, labor violence continued.413  A well-known example of this was the 1968 African American sanitation workers strike in Memphis.414  The labor dispute began when two sanitation workers were crushed to death by defective machinery and the city refused to pay compensation to their families.415  The workers went on strike bearing signs which read “I Am a Man.”416  The mayor ordered the strikers to return to work.417  The police used tear gas to disperse peaceful protestors.418  Dr. Martin Luther King, Jr. came to Memphis to support the strikers and later was assassinated there.419  Dr. King lead a march, which was infiltrated by outsiders and turned violent resulting in a death.420  After the King assassination, a settlement with the strikers was reached with the intervention of President Johnson.421 Much of the violence in later strikes was directed at strikebreakers and companies that hired replacement workers after a strike had been called.  This was certainly the case when in 1979, members of the striking United Farm Workers attacked strikebreakers and the companies that hired them.422  413. See The Right to Strike, NLRB, https://www.nlrb.gov/strikes [https://perma.cc/AK8T-B9SD] (outlining legal protections for employees). 414. The Martin Luther King, Jr. Rsch. & Edu. Inst., Memphis Sanitation Workers’ Strike, STANFORD U., https://kinginstitute.stanford.edu/memphis-sanitation-workers-strike  [https://perma.cc/VWL6-6M87] [hereinafter Memphis Sanitation Workers’ Strike]; see generally, STEVE ESTES, I AM A MAN!: RACE, MANHOOD, AND THE CIVIL RIGHTS MOVEMENT (2005) (describing the impact of race and gender on civil rights organizing); JASON SOKOL, THE HEAVENS MIGHT CRACK: THE DEATH AND LEGACY OF MARTIN LUTHER KING, JR. (2018) (explaining America’s reaction to King’s death). 415. Memphis Sanitation Workers’ Strike, supra note 414. 416. Id. 417. See DeNeen L. Brown, ‘I Am a Man’: The Ugly Memphis Sanitation Workers’ Strike that Led to MLK’s Assassination, WASH. POST (Feb. 12, 2018, 11:03 AM),  https://www.washingtonpost.com/news/retropolis/wp/2018/02/12/i-am-a-man-the-1968-memphis-sanitation-workers-strike-that-led-to-mlks-assassination/ [https://perma.cc/BQJ7-W2YC] (recognizing the mayor refused to concede to the demands of the union). 418. Memphis Sanitation Workers’ Strike, supra note 414. 419. Id.; DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 609–24 (1986) (describing King’s dealings in Memphis and his subsequent demise). 420. Brown, supra note 417. 421. Memphis Sanitation Workers’ Strike, supra note 414. 422. Ronald B. Taylor, UFW Employed Violence During Strike, Judge Rules, L.A. TIMES (May 14, 1986, 12:00 AM), https://www.latimes.com/archives/la-xpm-1986-05-14-me-5351-story.html [https://perma.cc/VYD7-8QLY]. 44St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 685 Similar incidents occurred over the next four decades in which strikebreakers and non-union workers were beaten or shot and company property was vandalized.423  Sometimes, when the criminals have been identified, they have been charged, convicted, and imprisoned.424  It would seem that with some frequency, unions and workers cannot resist violent action to achieve their ends.  The employers as well as law enforcement often responded in kind.425  As such, a cycle of violence has been perpetuated over decades.426  Eventually, the violence to persons declined, however, the destruction of property remained.427  There may be several explanations for this.  Over time, society may have placed a greater value on life and bodily integrity.  Correspondingly, the civil and criminal penalties for taking the life of a human being may have increased, providing a disincentive to murder.  Alternatively, with victories through the legislative process protecting the right to organize as well as many of the substantive goals of prior labor conflicts, perhaps the labor movement mellowed somewhat. XII.    WORLD WAR I PROTESTS With the advent of American entry into the first world war, a significant number of protests occurred followed by criminal convictions, imprisonments, and sometimes deportations.428  The protestors came from a variety of perspectives.  Some were committed to peace and opposed entry into the war on moral grounds, some were German sympathizers, some were Marxists, while others were anarchists.429  Virtually all violated the strict and harsh laws in place which prohibited interference with the war effort, including by speech.430  As such, most of these persons were clearly defying the law as it then stood.  Most of this activity would be protected by the  423. See Taft & Ross, supra note 410, at 221 (describing the likely causes of labor violence in America). 424. See, e.g., id. at 243 (recalling the arrest of violent strikers). 425. See, e.g., id. (“The pickets, on the other hand, complained that they were victims of repeated assaults by the police and hired sluggers of the employers.”). 426. See generally id. (explaining the violent history of the labor movement). 427. GILJE, supra note 47, at 170, 174. 428. See GEOFFREY STONE, PERILOUS TIMES 137 (2003) (describing political unrest at home and abroad). 429. See id. at 136–37 (acknowledging the different sentiments expressed by Americans toward the war). 430. See id. at 137 (explaining Wilson’s detestation of disloyalty and criticism concerning America’s involvement in the war). 45Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  686 ST. MARY’S LAW JOURNAL [Vol. 55:641 First Amendment guarantee of freedom of speech as it has evolved; however, free speech jurisprudence was in its infancy and the courts generally upheld the convictions.431  Given how the First Amendment has developed, most of these convictions are now seen as unjust and unconstitutional, however at the time they were certainly legally legitimate.  Some of the defendants sincerely believed in a more expansive conception of freedom of speech than the contemporary judiciary was prepared to recognize.432  As such they did not believe that they were violating the law.  Rather, they believed, if anything, the government was violating their constitutional rights by harassing, arresting, and prosecuting them.433  Others were radical ideologues who did not respect the system and simply did not care that they were defying its laws.  Indeed, their ultimate purpose was to destroy the system and its laws. In subsequent years, legislative and prosecutorial focus would shift from war protestors to Marxists, known to the law as syndicalists.434  Some of these defendants were idealistic innocents caught up in radical movements, while others were hardened radicals intent on bringing down the system whether peacefully or otherwise.435  As with the war protesters, First Amendment doctrine at the time was insufficiently developed to protect what has since been recognized as lawful activity.436  Several states passed anti-syndicalism laws which made it a crime to belong to an organization that was committed to eventual overthrow of national or state governments.437  Mere membership in such an organization would now be  431. See, e.g., Schenck v. U.S., 249 U.S. 47, 52–53 (1919) (upholding an espionage conviction despite the First Amendment concerns). 432. See, e.g., id. at 49 (raising the issue of free speech). 433. See, e.g., id. at 51–52 (denying relief based on the First Amendment). 434. See, e.g., Congress Passes Communist Control Act, HIST. (Aug. 21, 2020)  https://www.history.com/this-day-in-history/congress-passes-communist-control-act [https://perma.cc/MVu9-ACUJ] (detailing anticommunist laws). 435. See Christina D. Romer & Richard H. Pells, Great Depression, BRITANNICA, https://www.britannica.com/money/Great-Depression/Political-movements-and-social-change [https://perma.cc/YU5P-6S3X] (describing a “time when a significant number of Americans flirted with Marxist movements and ideas”); James Gregory, Special Section: Radicalism, GREAT DEPRESSION WASH. STATE, https://depts.washington.edu/depress/radicalism.shtml [https://perma.cc/K6Q9-Y3L8] (chronicling radical movements within Washington). 436. See Marc Rohr, Communists and the First Amendment: The Shaping of Freedom of Advocacy in the Cold War Era, 28 SAN DIEGO L. REV. 1, 2 (1991) (characterizing free speech jurisprudence as “remarkably undeveloped” during the Cold War era). 437. See Gitlow v. New York, 268 U.S. 652, 671–72 (1925) (sustaining a conviction under an anti-syndicalism law). 46St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 687 constitutionally protected but was not then.438  As such, members of these organizations were ultimately defying the law.  Arguably, some were unsuccessfully simply testing the limits of the law.  These and others, through their conduct, were paving the way to a more expansive and better understanding of First Amendment protection.  As such, since they were defying the law, perhaps by doing so, they were helping to create a better understanding of constitutional rights.  And yet others were dangerous radicals, intent on violently destroying the system who the government had the right to prosecute and imprison. The prosecution of radicals starting around 1917 and continuing for several decades thereafter was a mixed bag.  Clearly, most of the defendants were guilty of publicly defying the law as it then stood.  As such, prosecution was warranted.  Certainly, in retrospect and to some at the time, the laws in question were generally unconstitutional and unjust.  To a certain extent then, the criminal defendants in these cases were often change agents pushing society to a better conception of constitutional rights.  Societal change is generally slow to occur however, and few of the defendants experienced the benefits of the changes for which they campaigned.  Should the defendants in these cases be viewed as defiers of the law, which they were at the time, or should they be viewed as constitutional pioneers to whom we owe a debt of gratitude.  This issue arises frequently with respect to defiance of the law. XIII.    TULSA MASSACRE OF 1921 The Tulsa Massacre of 1921 is one of the most ignominious and tragic events in American history.  African Americans had been attracted to Tulsa, Oklahoma and had formed a successful community there, the Greenwood District, which became known as the “Black Wall Street.”439  The incident started when a Black shoe shine attendant allegedly molested a White female elevator operator.440  He was arrested and confined in the  438. See Rohr, supra note 436, at 1–3 (celebrating the evolution of First Amendment jurisprudence and the freedom to associate). 439. TIM MADIGAN, THE BURNING: MASSACRE, DESTRUCTION, AND THE TULSA RACE MASSACRE OF 1921, at 3 (St. Martin’s Publ’g Grp. 2021); see ALFRED L. BROPHY, RECONSTRUCTING THE DREAMLAND: THE TULSA RIOT OF 1921: RACE, REPARATIONS, AND RECONCILIATION 10 (2002) (characterizing Greenwood as “a vibrant African American community whose entrepreneurial verve led some to call its main thoroughfare ‘the black Wall Street’”). 440. JAMES S. HIRSCH, RIOT AND REMEMBRANCE: THE TULSA RACE WAR AND ITS LEGACY 78 (2002); SCOTT ELLSWORTH, THE GROUND BREAKING: AN AMERICAN CITY AND ITS SEARCH FOR JUSTICE 18 (2021). 47Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  688 ST. MARY’S LAW JOURNAL [Vol. 55:641 local jail.441  A lynch mob gathered outside of the jail.442  A group of armed African Americans gathered to prevent a lynching.443  There was an attempt to disarm one of the African Americans.444  A gun battle broke out and twelve were killed.445  That evening, a White mob burned thirty-five blocks of Greenwood to the ground killing at least 100 African Americans.446  It was alleged that airplanes were used to drop bombs on Black owned structures and to shoot fleeing Black citizens.447  The remaining, now homeless, African Americans were placed in internment camps.448  The Oklahoma National Guard arrived and martial law was declared.449  This tragic event was covered up and ignored for decades.450  Eighty years later, the Oklahoma Commission to Study the Tulsa Race Riots of 1921 recommended that reparations be paid to survivors and their descendants.451  The Tulsa Riot of 1921 was an instance in which the government and various private White citizens of Tulsa were clearly defying the law by engaging in violent terroristic and murderous activity.452  The African American community of Tulsa was free from blame. XIV.    PROHIBITION AND THE DEFIANCE OF PROHIBITION The temperance movement leading to Prohibition and the consistent willful violations of prohibition provide a study of defiance of law on both sides of a controversial political issue.  The temperance movement had been a force in American political life from before the American Revolution and the ratification of the Constitution.453  However, it gained momentum in the 19th century, particularly following the Civil War especially with the  441. HIRSCH, supra note 440, at 79; Yuliya Parshina-Kottas et al., What the Tulsa Race Massacre Destroyed, N. Y. TIMES (May 24, 2021) https://www.nytimes.com/interactive/2021/05/24/us/tulsa-race-massacre.html [https://perma.cc/DA5B-E4RK]. 442. HIRSCH, supra note 440, at 81. 443. Id. at 82–83. 444. Id. at 89. 445. Id. at 89–90. 446. ELLSWORTH, supra note 440, at 31–33. 447. Id. at 32–33. 448. HIRSCH, supra note 440, at 142–43. 449. Id.; Scott Ellsworth, Tulsa Race Massacre, ENCYCLOPEDIA OF OKLA. HIST. & CULTURE (Jan. 15, 2010), https://www.okhistory.org/publications/enc/entry.php?entry=TU013 [https://perma.cc/63FM-5QVY]. 450. HIRSCH, supra note 440, at 168–169; ELLSWORTH, supra note 440. 451. ELLSWORTH, supra note 440, at 248–49. 452. Id. 453. EDWARD BEHR, PROHIBITION: THIRTEEN YEARS THAT CHANGED AMERICA 13–15 (1996). 48St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 689 founding of the Women’s Temperance Union in 1873.454  The temperance supporters, or “drys” as they were known believed that public consumption of alcohol resulted in moral decay, economic waste, family violence and crime.455  The movement was inspired by certain Protestant denominations which were spiritually opposed to drinking as well as a rural sensibility that urban saloons were dens of corruption.456  To at least some extent, the battle between drys and wets became a battle between different Christian denominations, between nativists and European immigrants and between rural and urban America.457  Eventually, the Women’s Temperance Union was displaced at the head of the movement by the Anti-Saloon League.458 For the most part, the temperance movement was a peaceful political movement that attempted to influence legal change.459  However, there were notable exceptions.  Perhaps the most famous of these was Carrie Nation who repeatedly entered saloons in Kansas, which had already adopted prohibition, and smashed liquor bottles with a hatchet.460  She was arrested and imprisoned on several occasions garnering much publicity, mostly negative, for the temperance movement.461  Clearly, her destruction of property was vigilante action in violation of the law, however zealous her motivation for the cause. The Prohibitionist movement was legislatively successful, at least temporarily.462  By enacting a constitutional amendment authorizing the income tax, the temperance movement was able to meet the argument that Prohibition would deprive the nation of a crucial source of revenue—the tax on alcoholic beverages.463  By engaging in alliance with suffragettes supporting an amendment to the Constitution guaranteeing women the  454. Id. at 36–38. 455. Id. 456. Id. at 26–27. 457. Id. at 47–49. 458. Id. at 52. 459. Id. at 35. 460. Id. at 40–44. 461. Id. 462. Prohibition: A Case Study of Progressive Reform, LIBR. OF CONG.,  https://www.loc.gov/classroom-materials/united-states-history-primary-source-timeline/progressive-era-to-new-era-1900-1929/prohibition-case-study-of-progressive-reform/#:~:text=The%20prohibition%20movement%20achieved%20initial,successful%20in%20more%20urban%20states [https://perma.cc/VTS4-VD4A]. 463. DANIEL OKRENT, LAST CALL: THE RISE AND FALL OF PROHIBITION 55–58 (2010).  Ken Burnes produced a documentary on prohibition inspired by Daniel Okrent’s book.  Prohibition (PBS television broadcast Oct. 2, 2011). 49Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  690 ST. MARY’S LAW JOURNAL [Vol. 55:641 right to vote, the Anti-Saloon League accomplished at least two things: expanding the coalition supporting the Prohibition Amendment as well as enfranchising a group, who on the whole, were likely to favor Prohibition.464  A number of state legislatures enacted prohibition laws followed by the ratification of the Eighteenth Amendment banning “the manufacture, sale and transportation” of alcoholic beverages.465  The Volstead Act was passed by Congress as Enabling legislation for the Eighteenth Amendment.466  Prohibition lasted for thirteen years until 1933 when the Eighteenth Amendment was repealed by the Twenty-First Amendment.467  During that period there was widespread defiance of the law especially by organized crime which imported and distributed alcoholic beverages and by “speakeasies” which served them.468 The response to Prohibition, especially in urban areas, was perhaps the most extreme instance of defiance of legal authority in United States history.  Unlike the Civil Rights Movement of the 1950s and 1960s, the defiance was private rather than public.469  And it was not part of a protest movement to change the law.  Rather, it was simply to make money, or to have a good time.470  The defiance of the law during prohibition stemmed mostly from a difference in rural and urban values.471  To use modern terminology, it was part of a “culture war.”  The Eighteenth Amendment and the Volstead Act gave rise to massive bootlegging.472  This was criminal activity to be sure.  However, the public demand which made bootlegging a profitable business rendered it something more than ordinary criminal activity.  It became widespread defiance of the law.  Prohibition may have led to the large-scale creation of organized crime.473  Moon shining operations developed  464. Olivia B. Waxman, The Surprisingly Complex Link Between Prohibition and Women’s Rights, TIME (Jan. 18, 2019) https://time.com/5501680/prohibition-history-feminism-suffrage-metoo/ [https://perma.cc/9U3E-L8AD]. 465. BEHR, supra note 453, at 77–80. 466. Id. 467. Id. at 235–36. 468. Id. at 87–89. 469. Prohibition: A Case Study of Progressive Reform, supra note 462. 470. Mark Thornton, Alcohol Prohibition Was a Failure, CATO INST. POL’Y ANALYSIS NO. 157, https://www.cato.org/policy-analysis/alcohol-prohibition-was-failure [https://perma.cc/JY8Y-6VGM]. 471. Hicks and Slicks: The Urban-Rural Confrontation of the Twenties, AUSTIN CMTY. COLL., https://www.austincc.edu/lpatrick/his1302/hicks.html [https://perma.cc/7SEM-EUKK]. 472. Thornton, supra note 470. 473. OKRENT, supra note 463, at 320, 365–67. 50St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 691 throughout the South to provide illegal alcohol.474  Illegal stills were often operated by otherwise law-abiding people to profit from defiance of a particularly unpopular law.475  Speakeasies proliferated in urban areas to serve the thirsty public.476  This was not open defiance of law to be sure that in some sense, the defiance took place privately, but it was often semi-open in that enforcement officials were often paid off to look away.477  The case for the enforcement of prohibition laws was not helped by the fact that high federal officials, including presidents and congressmen, fairly openly defied it.478 The case for repeal included arguments that prohibition encouraged organized crime, deprived the nation of much needed tax revenue on liquor and illustrated the futility of attempting to legislate morality, at least where a significant portion of the nation did not accept the underlying moral principles embodied in prohibition giving rise to cynicism with respect to the law and law enforcement, as well as deaths and maiming attributable to adulterated alcohol.479  With the triumph of Franklin D. Roosevelt in the election of 1932, the Twenty-First Amendment—repealing the Eighteenth Amendment—was ratified in 1933, effectively ending the prohibition era.480 The failed experiment in prohibition has taught that it is probably impossible to enforce morals legislatively when a significant portion of the public rejects the underlying moral sentiments and is prepared to defy enforcement of the law.  The failed experiment of prohibition injected in the public at large a cynical attitude toward law, law enforcement and authority in general.  Prohibition provides an object lesson in the limits of law.  It illustrates that at some point, and it may be difficult to know in advance where that point is, the law cannot effectively prohibit the acquisition of something that a substantial segment of the public desires.  A black market will develop to provide the forbidden substance.  474. BEHR, supra note 453, at 172. 475. Id. 476. OKRENT, supra note 463, at 207–09. 477. Id. at 208, 319–20. 478. BEHR, supra note 453, at 85, 115. 479. OKRENT, supra note 463, at 373–76. 480. Id. at 351–54; ADAMIC, supra note 262, at 235. 51Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  692 ST. MARY’S LAW JOURNAL [Vol. 55:641 XV.    DEFIANCE BY THE JEHOVAH’S WITNESSES AND THEIR OPPONENTS During the 1930s and 1940s, a group consistently prosecuted for public defiance of law was the Jehovah’s Witnesses, who, through public preaching and hand-billing, managed to be arrested and convicted of various local offenses such as disturbing the peace.481  Indeed, much modern Free Speech and Free Exercise of Religion jurisprudence doctrine is attributable to litigation on behalf of the Jehovah’s Witnesses.482  Some of the persecution of the Witnesses began as they vigorously attacked other religions, especially Roman Catholics.483  Given their commitment to provocative public preaching, the Jehovah’s Witnesses regularly violated local ordinances prohibiting disorderly conduct and distributing literature without a license.484  They were frequently arrested and convicted finding relief consistently in the United States Supreme Court.485 Perhaps the most celebrated cases of defiance involved the refusal of Jehovah’s Witness children to recite the Pledge of Allegiance or salute the flag since, according to their religious beliefs, that would amount to worshiping a graven idol.  In 1935, William and Lillian Gobitis were expelled from the Minersville, Pennsylvania public school for refusing to salute the American flag in violation of state law.  The Supreme Court upheld the expulsions.486  The Gobitis487 decision was issued in the earliest days of World War II, a time of intense patriotic fervor.  Following the Gobitis decision, Jehovah’s Witnesses were subjected to extreme legal harassment and physical brutality nationwide.488  Three years later, two Jehovah’s Witness children were sent home from school in West Virginia for refusal to salute the flag.489  In West Virginia Board of Education v.  481. SHAWN FRANCIS PETERS, JUDGING JEHOVAH’S WITNESSES 33 (2000). 482. Among the major cases that the Witnesses won before the Supreme Court were West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Marsh v. Alabama, 326 U.S. 501 (1946); Cantwell v. Connecticut, 310 U.S. 296 (1940); Martin v. City of Struthers, 319 U.S. 141 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jamison v. Texas, 318 U.S. 413 (1943); Largent v. Texas, 318 U.S. 418 (1943); Lovell v. City of Griffin, 303 U.S. 444 (1938); Schneider v. New Jersey, 308 U.S. 147 (1939).  Even cases in which the Witnesses did not prevail they established significant principles of First Amendment doctrine in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cox v. New Hampshire, 312 U.S. 569 (1941); Jones v. Opelika, 516 U.S. 584 (1942). 483. PETERS, supra note 481, at 34. 484. Id. at 12. 485. Id. 486. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 600 (1940). 487. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940). 488. PETERS, supra note 481, at 95. 489. West Virginia Bd. Of Educ. v. Barnette, 319 U.S. 624, 629–30 (1943). 52St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 693 Barnette,490 the Supreme Court, in a classic opinion by Justice Jackson, reversed Gobitis and held that the children had a right pursuant to the First Amendment to refuse a compulsory flag salute requirement.491  The Court’s opinion in Barnette is one of its greatest explications of the meaning of freedom of speech guaranteed by the Constitution.  Harassment of the Witnesses continued after the Barnette decision however without legal sanction.492 The Jehovah’s Witnesses continually, during this period, willfully defied the law acting on deeply held religious convictions.  They were arrested, convicted and often vindicated by the courts, especially the Supreme Court.493  In retrospect, they appear to be courageous civil liberties crusaders to whom we all owe a debt.  But at the time, they couldn’t know or appreciate that.  They were annoying to the public.494  Rather, they publicly violated laws which infringed their religious convictions and were quite willing to accept the legal consequences of their actions. XVI.    BROWN V. BOARD OF EDUCATION, SCHOOL DESEGREGATION AND RESISTANCE In 1954, in Brown v. Board of Education, the Supreme Court unanimously declared that legally enforced racial segregation in public schools violated the Fourteenth Amendment of the Constitution.495  Racial segregation in the South and in many border states had been practiced for decades, at least in partial reliance on the Court’s 1896 decision in Plessy v. Ferguson.496  Many states and individual school districts, including the Topeka School District, the defendant in Brown, complied with the decision readily, but some did not.497  In oral arguments focusing on the remedy, the state’s attorney for South Carolina would not commit to compliance by the state.498  The  490. West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 491. Id. at 642. 492. Id. 493. PETERS, supra note 481, at 12. 494. Id. at 33–34. 495. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). 496. Plessy v. Ferguson, 163 U.S. 537 (1896) (holding legislation requiring railways to provide accommodations for the separation of “white and colored persons” are constitutional). 497. Transcript of Oral Argument at 18, Brown v. Bd. of Educ., 347 U.S. 483 (1954) (No. 101) at 10. 498. Id. at 18. 53Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  694 ST. MARY’S LAW JOURNAL [Vol. 55:641 justices assumed that there would be resistance to school integration but probably underestimated the breadth and intensity of that resistance.499 The crucial case with respect to defiance of judicial desegregation mandates came with respect to Central High School in Little Rock, Arkansas.  In an attempt to resist integration of Central High, Governor Orville Faubus attempted to resurrect the long-discredited doctrine of interposition.500  He argued that in order to protect the citizens of Arkansas from overreaching by the federal government, he would interpose Arkansas law enforcement officers between the federal government and the high school.501  In negotiations with President Eisenhower, Faubus backed down, but he declined to order Arkansas law enforcement to protect the nine African American students assigned to Central High.502  As a result, defiance by a state official was replaced by defiance by an angry mob.503  Eventually, President Eisenhower sent in National Guard troops and Central High was desegregated.504  In response to Governor Faubus’s resistance to a federal district court order, the Supreme Court published its opinion in Cooper v. Aaron,505 signed, as if co-authored, by all nine justices.506  The Court obviously viewed this as a severe challenge to its authority, as ultimate constitutional interpreter as well it was.  Perhaps, the Court may have overstated its role as ultimate and exclusive interpreter of the Constitution, however it saw itself as backed into a corner as had not been the case since the early days of the republic. Despite the strong language employed by the Court in Cooper v. Aaron, resistance to desegregation decrees did not cease in 1958 but continued for the better part of another decade.507  The Court has been criticized for not standing behind lower federal courts who were bearing most of the brunt of resistance to desegregation.508  Indeed, some school districts resisted desegregation with vigor.509  Prince Edward County, Virginia closed its  499. Id. at 14. 500. JUAN WILLIAMS, EYES ON THE PRIZE 97 (1987). 501. Id. at 99. 502. Id. at 102–03. 503. MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 326 (2004). 504. Id. 505. Cooper v. Aaron, 358 U.S. 1 (1958). 506. Id. at 4. 507. See KLARMAN, supra note 503, at 373, 434–36 (discussing civil rights efforts and various states’ opposition to desegregation). 508. Id. at 343. 509. Id. 54St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 695 public schools rather than desegregate.510  The Court invalidated this tactic as inconsistent with the district court’s mandate.511 Eventually, federal aid conditioned on specific progress on desegregation brought hard core resistance to an end.512  The resistance to desegregation orders illustrated that over time, the federal government could overcome intense resistance if all three branches of government employed the means at their disposal to address the problem. XVII.    THE CIVIL RIGHTS MOVEMENT Perhaps the most prominent example of defiance of existing law as a means of challenging the legitimacy of that law involves the Civil Rights Movement of the 1950s and 1960s especially in the American South.  Dr. Martin Luther King, Jr. developed the strategy of non-violent civil disobedience as a means of challenging and hopefully changing laws requiring racial segregation.513  Dr. King wrote and spoke extensively explaining the theory.514  The genesis of the Civil Rights Movement dated to the reconstruction era following the abolition of slavery.515  Given years of oppression, especially in the South, the modern civil rights movement did not emerge until the mid-nineteen fifties.516 The non-violent protest movement probably started in 1955 when Rosa Parks refused to relinquish her seat on a bus in Montgomery, Alabama, as required by a local ordinance.517  She was arrested.518  Miss Parks was a civil rights activist who was well aware that she was violating the law.519  She took this action to publicly challenge the legitimacy of the law.520  Her arrest occurred in a context of rising anger in the African American community  510. Griffin v. Cnty. Sch. Bd. of Prince Edward, 377 U.S. 218, 222–23 (1964). 511. See id. at 225 (acknowledging the school district had been one of the parties in the five cases decided in Brown v. Bd. of Educ., 347 U.S. 483 (1954)). 512. The Fifth Circuit Court of Appeals decision in United States v. Jefferson Cnty. Bd. Of Educ., 372 F.2d 836, 847 (1966) is often considered the key case in which Judge Wisdom tied desegregation efforts to the 1965 HEW guidelines. 513. GARROW, BEARING THE CROSS, supra note 419, at 619. 514. Id. at 609–24. 515. Id. 516. Id.  It may be with the decline of lynching in the South, African Americans became more assertive.  GILJE, supra note 47, at 152. 517. GARROW, BEARING THE CROSS, supra note 419, at 11–14. 518. Id. at 12. 519. Id. at 13. 520. Id. at 14. 55Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  696 ST. MARY’S LAW JOURNAL [Vol. 55:641 over segregation and mistreatment.521  There had been a boycott of local bus segregation a few years earlier in Baton Rouge, Louisiana.522  A Black teenager, Emmet Till, had been murdered by White men in Mississippi earlier in the year.523  There was a lengthy history of Montgomery bus drivers abusing African American passengers.524 Following the arrest of Rosa Parks, a meeting was called by the local chapter of the NAACP to determine how to respond.525  A young local minister, Dr. Martin Luther King, Jr was selected to lead the protest.526  The organization Montgomery Improvement Association (known as the MIA) called for a boycott of the Montgomery buses.527  The boycott lasted for a year until the Supreme Court affirmed a decision of a three judge district court holding that the segregation of the buses in Montgomery was unconstitutional in 1956 in Gayle v. Browder.528  Despite the fact that Dr. King’s home was firebombed and that he was arrested and jailed for conspiring to interfere with business under a local ordinance, the Montgomery bus boycott was an enormous success providing inspiration and a model for future civil rights action.529  It also thrust Dr. King to the forefront of the Civil Rights Movement.530 Perhaps the next celebrated act of defiance of law as part of the Civil Rights Movement was the lunch counter sit-ins at Woolworth’s stores in Greensboro, North Carolina in 1960 to protest local segregation laws.531  The Greensboro four sat at the segregated lunch counters at Woolworths and after being refused service, declined to leave.532  This was not the first sit-in but became the most famous.533  The group of protestors swelled to  521. Id. at 12–13. 522. KLARMAN, supra note 503, at 371. 523. Id. at 424–25. 524. GARROW, BEARING THE CROSS, supra note 419, at 11–13. 525. Id. at 12. 526. Id. at 82.  The boycott was not intended to end racial segregation on the busses but merely to modify it so that an African American would not need to relinquish his or her seat to a White person.  Id. at 24.  Under Dr. King’s proposal, African Americans would still be required to sit in the back of the bus. 527. GARROW, BEARING THE CROSS, supra note 419, at 14. 528. Gayle v. Browder, 352 U.S. 903 (1956). 529. GARROW, BEARING THE CROSS, supra note 419, at 83. 530. Id. 531. KLARMAN, supra note 503, at 373. 532. Id. 533. DAVID HALBERSTAM, THE CHILDREN 234 (1998). 56St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 697 over 300 in the next few days.534  The sit-ins spread throughout the South.535  The sit-ins transformed into a boycott of stores operating segregated lunch counters.536  The loss of business pursuant to the boycotts prompted the stores to desegregate their lunch counters.537 In spring 1961, The Freedom Riders movement began.538  Civil rights activists boarded buses bound for the South to protest segregation of transportation in the South.539  The Freedom Riders were not defying federal law although they were in violation of petty local ordinances.  They were severely beaten by angry mobs in various southern cities while state and federal law enforcement declined to intervene and provide protection.540  In this instance, it was the violent mobs rather than the civil rights activist who were acting in defiance of law. The Civil Rights Movement scored a major victory with Dr. King’s direct action protest movement in Birmingham, Alabama in spring 1963.541  Protest marches were scheduled to attempt to reach the city center.542  The organizers of the marches expected that hard-core segregationist Commissioner of Public Safety, Bull Connor, would overreact to the challenge to his authority and use force which the national media would cover and bring national publicity to the violence directed against African Americans in the South.543  He did just that turning police dogs and water hoses against the protestors, many of whom were children.544  Pictures of this violent reaction were featured in the national media.545  This one event was probably the point at which the civil rights non-violence movement and Dr. King began to achieve victory.546  It was recognized in Birmingham and later in Selma, that it was not the peaceful protest march  534. Id. at 93; Greensboro Sit-In, HIST. (Jan 25, 2022), https://www.history.com/topics/black-history/the-greensboro-sit-in [https://perma.cc/E78C-S93P]. 535. Id. at 234. 536. Id. 537. Id. 538. THOMAS REEVES, A QUESTION OF CHARACTER 339 (1992). 539. Id. 540. Id. 541. GARROW, BEARING THE CROSS, supra note 419, at 231–86 (describing the events of the Brimingham march and the aftermath). 542. Id. at 248–49. 543. Id. at 248–49.  Wyatt Walker who directed the protest for the Southern Christian Leadership Conference later explained, “We did with design precipitate crises, crucial crises in order to expose what the black community was up against.”  Id. at 248. 544. KLARMAN, supra note 503, at 434. 545. Id. at 434–35. 546. Id. at 435–36. 57Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  698 ST. MARY’S LAW JOURNAL [Vol. 55:641 that achieved results, but rather the violent overreaction of law enforcement officials covered in detail by the national media that made the difference.547  It was Bull Connor’s police dogs and fire hoses instead of Dr. King’s peaceful march that achieved the ends of the movement.  The cases of Walker v. City of Birmingham548 and Shuttlesworth v. City of Birmingham549 illustrate the Supreme Court’s approach to defiance of legal authority.  Birmingham, Alabama had been a hotbed of civil rights protest throughout the Spring of 1963.550  Dr. Martin Luther King, Jr. had been arrested and wrote his famous letter from the Birmingham jail.551  Commissioner Bull Connor had inadvertently evoked strong national sympathy for the civil rights movement by turning police dogs and fire hoses on peaceful protestors.552  The controversial Children’s Crusade had taken place.553 A protest march had been planned for Easter Sunday.554  A local ordinance prohibited the march without a permit.555  A local judge issued an injunction against the march specifically naming some of the organizers and including the text of the ordinance in the injunction.556  Nevertheless the march took place.557  One group of marchers, who violated the ordinance but who had not been named in the injunction were arrested for violating the ordinance.558  In the Shuttlesworth case, they successfully argued to the Supreme Court that the ordinance was unconstitutional and that their convictions should be reversed.559  However, another group of marchers who were named in the injunction were not so fortunate.  They had been held in contempt for violating the injunction.560  In Walker, the Supreme Court in a 5–4 decision upheld their convictions on the ground that when a court issues an order to named parties, the only proper way to  547. Id. at 436. 548. Walker v. City of Birmingham, 388 U.S. 307 (1967). 549. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). 550. KLARMAN, supra note 503, at 434–35. 551. TAYLOR BRANCH, PILLAR OF FIRE 47–49 (1998). 552. KLARMAN, supra note 503, at 434–35. 553. HALBERSTAM, supra note 533, at 439–43. 554. Walker v. City of Birmingham, 388 U.S. 307, 308–309, 311 (1967). 555. Id. at 309. 556. Id. 557. Id. at 311. 558. Id. at 312. 559. Shuttlesworth v. City of Birmingham, 394 U.S. 147,150–51 (1969). 560. Walker v. City of Birmingham, 388 U.S. 307, 312 (1967). 58St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 699 challenge it is through the legal process.561  In other words, a party could march now and challenge a legislative act later, but not so with a judicial order.  Even if illegal, the judicial order could only be challenged through the appropriate legal process.  Defiance and subsequent challenge were impermissible. A cynical view of the distinction might suggest that the courts were overly sensitive to defiance of their own authority.  Why shouldn’t the challenge now through appropriate channels, march later principle apply to legislation as well as injunctions?  Or alternatively, why shouldn’t defiance of either, assuming a successful judicial challenge be acceptable? Along with the Birmingham protests, the Selma march of 1965 was an iconic moment for the Civil Rights Movement.562  Various civil rights groups organized a march from Selma, Alabama to the capital in Montgomery, Alabama—a distance of 54 miles—to protest for greater legal protection of voting rights.563  Three separate marches commenced from Selma.564  The first march on March 7, 1965 was turned back at the Edmund Pettis Bridge by state troopers and vigilantes who violently attacked the peaceful marchers.565  The second march took place two days later on March 9th.566  The troopers on the bridge stepped aside to allow the marchers to pass, however Dr. King, acting pursuant to a federal injunction, led the marchers back to a church in Selma.567  The third march began on March 21st.568  The marchers were escorted by the Alabama National Guard as well as FBI agents.569  This time, the marchers made it to Montgomery.570  The federal Voting Rights Act of 1965 was passed on August 6, 1965.571  Selma, like Birmingham, was successful in advancing the civil rights cause, not because of the peaceful protest itself but rather because of national media coverage of the violent overreaction of the local  561. Id. at 320. 562. See generally DAVID GARROW, PROTEST AT SELMA (1978) [hereinafter GARROW, PROTEST] (detailing the planning and outcomes of various marches advancing voting rights in Selma, Alabama). 563. Id. at 39. 564. Id. at 66. 565. Id. at 76. 566. Id. 567. Id. 568. Id. at 115. 569. Id. 570. Id. at 116. 571. Id. at 133. 59Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  700 ST. MARY’S LAW JOURNAL [Vol. 55:641 authorities.572  The organizers of the protests anticipated the violent reaction and deliberately provoked it through peaceful protest.573  Civil rights protestors defied many other laws as well.  In some instances, the laws were either passed or administered for the purpose of targeting and quashing civil rights protests.574  Such laws were regularly invalidated.575  Other laws were deemed to have legitimate purposes and were upheld in the face of defiance.576  These included conducting a protest in a near jail for instance.577 The defiance of law by the Civil Rights Movement is celebrated today as historic activity.578  There are several explanations for this.  Perhaps it is because the segregation laws which the protest was aimed at were so unjust.  Perhaps it is also because the defenders of segregation used such violence in defense of the laws.  Perhaps, another reason is because under Dr. King’s stewardship, the protests, though defiant of existing laws, proceeded non-violently.  It is also significant that the protests were successful in ending legal segregation in the South.579  Nothing succeeds like success.  Defiance of law which leads to a significant change in legal and social norms tends to be accepted, at least in retrospect. XVIII.    RESISTANCE TO SCHOOL PRAYER DECISIONS In 1962, in Engel v. Vitale,580 the Supreme Court held that it was a violation of the Establishment Clause of the First Amendment for a public school to require the recitation of a prayer.581  The following year, the Court held that the reading of the Bible over the intercom at the beginning of the school day also violated the Establishment Clause.582  There is a consensus that the school prayer decisions are among the most defied decisions of the United States Supreme Court.583  In many school districts, mandatory prayer  572. Id. at 228. 573. Id. at 135. 574. Id. at 87, 132. 575. Id. at 132. 576. Adderley v. Florida, 385 U.S. 39, 48 (1966). 577. Id. at 40. 578. GARROW, PROTEST, supra note 562, at 133. 579. Id. 580. Engel v. Vitale, 370 U.S. 421 (1962). 581. Id. at 436. 582. Sch. Dist. of Abbington v. Shempp, 374 U.S. 203, 227 (1963). 583. LUCAS POWE, THE WARREN COURT AND AMERICAN POLITICS 363 (2000); BRUCE DIERENFIELD, THE BATTLE OVER SCHOOL PRAYER 147, 183 (2007). 60St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 701 had been a part of public education as long as public education had existed.584  Given this tradition as well as the importance that many attached to prayer in public schools, the decisions were frequently seen as a secular mandate imposed by a distant, arrogant, and unresponsive institution.585  As such, for many, the decisions lacked legitimacy and should be ignored.586  A reason why defiance was successful, was due to lack of effective enforcement capability.587  If a community believed that regardless of what the Court in Washington, D.C. said, prayer in schools mattered and was appropriate, there were limits to what federal authorities could do to enforce the decisions in Engel and Schempp.  Prayer would occur in local schools far removed from media limelight.588  If the community supported school prayer, it would take a principled and courageous parent to challenge the practice recognizing that his child and family would be ostracized or worse.  For most objectors, the best course was simply to ignore the defiance of the schools.  The defiance generally was not reduced to an easily challengeable written policy.  Rather, it simply happened and almost certainly still happens. The widespread defiance of the school prayer decisions illustrates that the courts, as well as other legal institutions, lack power to impose their will against popular cultural beliefs and traditions absent dedicated executive enforcement power.  And if the judicial mandate runs sufficiently counter to widely and deeply held cultural values, such enforcement authority may be difficult, if not impossible to marshal.  Those who control enforcement authority, unlike the federal judiciary will probably be electorally accountable and will be disinclined to devote resources to the enforcement of unpopular laws. XIX.    THE 1960S: VARIOUS PROTEST MOVEMENTS, ESPECIALLY ANTI-WAR PROTESTS The 1960s is seen as a decade of defiance and protest.  Protests and defiance focused on civil rights (discussed above), the Vietnam War and the draft, women’s rights, and gay rights.  Perhaps, the anti-segregation protests in the South led by Dr. King, legitimized and normalized large scale protest including defiance of law as a means of affecting legal and societal change.  The Vietnam War protest was also at the heart of defiance of law in the  584. POWE, supra note 583, at 363; DIERENFIELD, supra note 583, at 183. 585. POWE, supra note 583, at 363; DIERENFIELD, supra note 583, at 147. 586. DIERENFIELD, supra note 583, at 147. 587. POWE, supra note 583, at 363; DIERENFIELD, supra note 583, at 147, 183. 588. DIERENFIELD, supra note 583, at 183. 61Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  702 ST. MARY’S LAW JOURNAL [Vol. 55:641 1960s.589  Some of the protest arose from genuine disagreement with the war.  However, the war was personalized by the draft.  Many who paid slight interest to politics and foreign affairs became involved in widespread protest movements when they were placed in danger of being drafted and sent to Southeast Asia where they might well be killed or seriously maimed.590  One at least must wonder whether the 1960s as a decade of protest and defiance would have looked different, absent the draft.  Still, there was a legitimate call for change in social norms and various institutions.  Perhaps protest movements would have materialized anyway though it is likely that the different protest movements fed off and inspired each other.  In other words, the 1960s may have been “the perfect storm.” Vietnam War and draft protests readily involved overt defiance of law especially in the form of burning draft cards and on occasion the American flag.591  Burning a draft card was clearly illegal,592 however, violating this particular law as a means of political protest may have paled beside the prospect of being drafted and perhaps killed in the war. A prominent example of defiance of law involved the sometimes-violent protests outside of the Democratic Convention in Chicago in 1968.593  Seven leaders of the demonstrations, “the Chicago Seven,” were arrested and prosecuted in what turned out to be a show trial and media circus.594  The defendants, mostly hard-core activists, refused to cooperate with the court and obey its rules.595  One of the defendants, Black Panther Bobby Seale, was bound and gagged to prevent outbursts.596  The situation was complicated by the arbitrary approach of Judge Julius Hoffman.597  The guilty verdicts were reversed by the Seventh Circuit Court of Appeals.598  Though the trial of the Chicago Seven was an extreme case, it came to represent the chaos and defiance of the 1960s.  Shooting by the  589. GILJE, supra note 47, at 175. 590. Vietnam War Protest, HIST. (Nov. 1, 2022), https://www.history.com/topics/vietnam-war/vietnam-war-protests#antiwar-movement-begins [https://perma.cc/2UCF-57VU]. 591. See United States v. O’Brien, 391 U.S. 367, 388 (1968) (discussing the legality of burning draft cards as protest). 592. The Court so confirmed in O’Brien, 391 U.S. at 367. 593. NORMAN MAILER, MIAMI AND THE SIEGE OF CHICAGO 22 (1968). 594. JON WIENER, CONSPIRACY IN THE STREETS 3, 56 (2006). 595. Id. at 3. 596. Id. at 53. 597. Id. at 15. 598. United States v. Dellinger, 472 F.2d 340, 409 (7th Cir. 1972). 62St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 703 National Guard of student protestors at Kent State University in May 1970 had an extreme effect.599 The women’s liberation movement, or second wave feminism also emerged in the late 1960s.600  To some extent, it was modeled after the Civil Rights Movement.601  It tended to be philosophically grounded and did not initially involve explicit defiance of law.602  Not so the gay rights movement.  Although, it had been around for a while, the movement officially got its start from the Stonewall Riots of 1969.603  The Stonewall Inn was a gay bar in Greenwich Village owned by the Mafia, which made money by blackmailing some of the wealthier patrons.604  The police regularly raided the bar and harassed the patrons.605  On June 28, 1969, the police raided the Stonewall and the clientele and others in the neighborhood fought back violently, setting fires and pelting the police with bricks and bottles.606  The riot continued on the following evening.607  The Stonewall Riots were a response to years of abuse by the police.608  The response was violent and defiant of law and order but so was the police harassment that encouraged the response.  As with several other riots that have occurred, once frustration and anger reach a boiling point, respect for law and order vanished.  XX.    URBAN RIOTS (THE 1960S-ESPECIALLY) Urban riots have been occurring for over 100 years.  Perhaps the most famous early urban riot was the New York Draft Riot of 1863, which continued for four days and was provoked by recently enacted draft laws during the Civil War.609  The riots occurred shortly after the Battle of  599. GILJE, supra note 47, at 168. 600. Elinor Burkett, Women’s Rights Movement, BRITANNICA,  https://www.britannica.com/event/womens-movement/Successes-and-failures [https://perma.cc/6QP7-UR3M]. 601. Id. 602. Id. 603. See generally DAVID CARTER, STONEWALL: THE RIOTS THAT SPARKED THE GAY REVOLUTION (2010) (explaining the history behind the Stonewall riots of 1969). 604. Id. at 1. 605. Id. at 82, 161. 606. Id. at 138, 141. 607. Id. at 137, 184. 608. See id. at 79–82, 161 (describing the hostile relationship between patrons of the Stonewall and local police). 609. See supra notes 210–17 and accompanying text. 63Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  704 ST. MARY’S LAW JOURNAL [Vol. 55:641 Gettysburg further south.610  Over the decades, race riots broke out in several big cities including Chicago in 1919,611 Tulsa in 1921,612 and Harlem in 1948.613  These riots were usually provoked by incidents relating to segregation and police brutality.614  African Americans generally suffered most of the violence.615  The 1960s were the decade in which “race riots” in major urban areas occurred with some frequency.616  They were often provoked by police shootings African Americans, however racial discrimination, lack of opportunity, growing Black militancy, and stifling summer heat all contributed to a combustible situation.617 Though not the first of the 1960s urban riots, the 1965 riots in the Watts segment of Los Angeles was perhaps the most well-known of the disturbances.618  The riots which occurred over a six-day period from August 11th to August 16th began with a confrontation between police and an intoxicated African American driver, who was hit with a baton by the police in the course of making an arrest.619  Rumors which distorted the nature of the incident spread throughout the community.620  There had been extreme segregation in housing and a history of police brutality aimed at minorities prior to this incident.621 The incident quickly escalated into a full-scale riot.622  Over 14,000 National Guardsmen joined over 2,000 law enforcement officers in an attempt to put down the riot.623  African Americans threw bricks and bottles at law enforcement officers.624  Several blocks of businesses were burned.625  610. BERNSTEIN, supra note 216, at 3. 611. GILJE, supra note 47, at 113–14. 612. Id. at 114; see supra notes 439–52 and accompanying text. 613. GILJE, supra note 47, at 157. 614. Id. at 158. 615. Id. at 159. 616. Id. at 158–59. 617. Id. 618. Id. at 158; see generally JERRY COHEN & WILLIAM S. MURPHEY, BURN BABY BURN (1967) (providing a detailed account of the Watts riots of 1965). 619. COHEN & MURPHEY, supra note 618, at 286. 620. Id. 621. Id. at 257. 622. GILJE, supra note 47, at 157–58. 623. James Queally, Watts Riots; Traffic Stop Was the Spark that Ignited Days of Destruction in L.A., L.A. TIMES (July 29, 2015), https://www.latimes.com/local/lanow/la-me-ln-watts-riots-explainer-20150715-htmlstory.html [https://perma.cc/7T79-JMF7]. 624. GILJE, supra note 47, at 160. 625. Id. at 159–60. 64St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 705 White motorists were pulled from their cars and beaten.626  Thirty-four people were killed, mostly residents of Watts, and forty  million dollars of property damage was done.627 The causes of the riots were studied in extreme detail.  Some pointed to discrimination in housing, lack of economic opportunity, as well as a history of harassment of African Americans by the police.628  Others blamed “outside agitators” waiting for a crisis to exploit.629  Others blamed the overly militaristic response of law enforcement for turning a limited urban disturbance into a full-scale riot and battle.630  Watts may have been one of the first urban uprisings, but hardly the last.631  The record shows however legitimate the grievances of the African American community might have been, a full-scale riot broke out with a massive defiance of law, including mass destruction of property, as well as harm to individuals including fire fighters and police.632  This was not legally justifiable by any theory; 1967 became the year of urban riots, however the riot from that year which stands out took place in Detroit.633  Like Watts, and most other urban areas, there was significant racial discrimination in housing due to redlining and restrictive covenants, high unemployment, especially among young Black citizens, and a pattern of police harassment and brutality.634  As with Watts, a specific incident triggered the riots.  A celebration was being held for returning army veterans in a venue unlicensed to sell alcohol, known as a “blind pig.”635  The police learned of the event and arrested eighty-five people, all of whom were African Americans.636  This incident set off six days of rioting in which forty-three were killed, over 7,000 were arrested, and city blocks of businesses, many owned by African Americans, were looted and burned.637  Eventually, Governor Romney deployed the national guard and President Johnson sent in paratroopers to quell the  626. Id. at 160. 627. COHEN & MURPHEY, supra note 618, at 286–87. 628. GILJE, supra note 47, at 159. 629. Id. at 158. 630. Id. at 160–61. 631. Id. at 158. 632. Id. 633. Id. at 160. 634. Id. at 159. 635. 1967 Detroit Riots, HIST. (Mar. 23, 2021), https://www.history.com/topics/1960s/1967-detroit-riots [https://perma.cc/9UCJ-6RUT]. 636. Id. 637. Id. 65Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  706 ST. MARY’S LAW JOURNAL [Vol. 55:641 disturbance.638  African American residents of Detroit had many legitimate grievances, but to some, the uprising was seen as an excuse to loot.639  The riots led to attempts to redress the grievances including the passage of fair housing laws and efforts to expand job opportunities for urban youth.640  Among the longer-term impacts of the riots were the increase in White flight from Detroit to the suburbs, as well as a strengthening of radical voices and a weakening of moderate voices within the African American community.641  It was tragic that it took so much death and destruction to cause the political system to respond to the legitimate grievances of the African American community. The riot in Detroit was the most famous and most deadly race riot to occur in the summer of 1967, but there were 158 others, including in Newark, Atlanta, Cincinnati, Milwaukee, Boston, Minneapolis, Portland, and many other cities.642  In most of these cities, the underlying grievances were the same-discriminatory housing practices, high unemployment, and a history of police harassment.643  In most instances, the riots were set off by an encounter between the police and an African American.644  In most instances, the disturbances led to massive looting of businesses, many owned by African Americans.  The overly militaristic response to these riots may have escalated the violence turning what started out as a disturbance into a pitched battle with law enforcement. Following the assassination of Dr. Martin Luther King, Jr. in April 1968, riots broke out in over 100 cities.645  Perhaps the most prominent of the 1968 urban riots occurred in Washington, D.C. and lasted for five days.646  The riot was provoked by incendiary speeches by Stokley Carmichael of the Student Non-Violent Coordinating Committee (SSNC).647  More than 1,200 buildings were burned.648  Marines guarded the Capitol with the army  638. Id. 639. GILJE, supra note 47, at 159. 640. Id. 641. 1967 Detroit Riot, supra note 635. 642. GILJE, supra note 47, at 159. 643. Id. at 156, 159. 644. Id. at 158. 645. Id. at 158. 646. Ben A. Franklin, Army Troops in Capitol as Negros Riot, N.Y. TIMES, Apr. 6, 1968, at I6. 647. Id. 648. John Mintz, Investors Reclaiming Riot Corridors, WASH. POST, Apr. 7, 1988. 66St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 707 guarding the White House.649  The African American economy of the city was devastated.650 Riots occurred in many other cities including Chicago, New York, Cincinnati, and Kansas City.  Apparently, a potential riot in Boston was defused by James Brown who was performing there.651  The assassination of Martin Luther King, Jr. was the immediate cause of the riots, but they were primarily fueled by local grievances concerning discrimination, lack of employment opportunity, and harassment by police.  Dr. King had preached non-violence.652  After the assassination, the non-violent approach seemed pointless and ineffective to many.653  As with the early riots, the response of legislatures, especially the Congress, was to pass anti-discrimination legislation, particularly with respect to housing.  The riots probably resulted in more political racial polarization, not less. XXI.    DEFIANCE OF ROE V. WADE AND ABORTION LAW  In 1973, the United States Supreme Court decided Roe v. Wade,654 recognizing a constitutional right to obtain an abortion prior to viability.655  The decision gave rise to a rabid pro-life movement, including Operation Rescue, which in the extreme, murdered doctors who performed abortions, and to a lesser extent, blocked access to abortion clinics.656  Murder is obviously against the law and is unacceptable under any circumstances.  If the Supreme Court held that abortion is legally protected, as it did in Roe, then blocking access to abortion facilities is a defiance of law which the government had the right to prevent and punish.  There were cases involving activity designed to deny complete access which were  649. BEN W. GILBERT, TEN BLOCKS FROM THE WHITE HOUSE 89, 98 (1968). 650. Id. at 212–14. 651. James Brown Calms Boston Following the King Assassination, HIST. (Apr. 2, 2021), https://www.history.com/this-day-in-history/james-brown-calms-boston-following-the-king-assassination [https://perma.cc/A7N9-9AJP]. 652. Id. 653. See id. (describing the turbulence and uprisings immediately preceding Dr. King’s assassination). 654. Roe v. Wade, 410 U.S. 113, 165–66 (1973), holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992), and overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). 655. Id. at 165–66. 656. Hill v. Colorado, 530 U.S. 703 (2000); Lliam Stack, A Brief History of Attacks on Abortion Providers, N.Y. TIMES (Nov. 29, 2015),  https://www.nytimes.com/interactive/2015/11/29/us/30abortion-clinic-violence.html [https://perma.cc/HR3R-HWJN]; GILJE, supra note 47, at 170. 67Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  708 ST. MARY’S LAW JOURNAL [Vol. 55:641 relatively easy under a rule of law approach.  Preventive action proved to be more difficult.  The states attempting to assure access to abortion clinics created “buffer zones” around clinic entrances and adjoining sidewalks prohibiting pro-life advocates from approaching persons within the buffer zone.657  The idea made sense as an attempt to ensure access to abortion clinics.  At some point, however, the “buffer zone” concept would invade the First Amendment rights of the pro-life advocates.658  This produced a clash of constitutional rights and a delicate balance needed to be struck.  It was argued that the Court gave preference to the abortion right in resolving the conflict.659  Whether or not that was true, the states certainly had a valid interest in protecting the constitutional right to obtain an abortion.  Under a rule of law approach, pro-life advocates must accept the legal consequences of their actions, including fines and jail sentences. XXII.    1992 LOS ANGELES RIOTS As noted above, most of the severe urban riots occurred in the 1960s, particularly 1967 and 1968.  However, the most devastating riot, at least in terms of loss of life and property damage, took place in Los Angeles in 1992.660  This riot was provoked by the acquittal of four police officers by a jury charged with the brutal beating of motorist Rodney King.661  King led the police on a chase of speeds up to 115 miles per hour.662  When he was finally arrested, he was brutally beaten by the officers.663  The incident was captured on videotape and shown frequently on television.664  The officers who inflicted the beating were charged, tried, and acquitted by a jury.665  The acquittals were met with outrage and rioting.666  During the six days of rioting, sixty-three people were killed, over 12,000 were arrested, and over  657. The Court upheld a fixed buffer zone but invalidated a floating buffer zone in Schenk v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 380 (1999) and Hill v. Colorado, 530 U.S. 703, 734–35 (2000). 658. See Schenk, 519 U.S. at 380 (upholding a fixed buffer zone but invalidating a floating buffer zone during protests); Hill, 530 U.S. at 734–35 (upholding a buffer zone). 659. Hill, 530 U.S. at 765 (Kennedy, J., dissenting); id. at 741 (Scalia, J., dissenting). 660. CHARLES RIVERS EDITORS, THE 1992 LOS ANGELES RIOTS: THE HISTORY OF CIVIL DISTURBANCES ACROSS LA AFTER THE BEATING OF RODNEY KING (2021) [hereinafter 1992 RIOTS]. 661. Id. 662. Id. 663. Id. 664. Id. 665. Id. 666. Id. 68St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 709 one billion dollars in property damages resulted.667  Prior to the riots, there was distress in the African American community over excessive use of force by the police.668  This pent-up rage at the police contributed to the violent reaction to the verdict.669  There was simmering resentment and violence between the African American and Korean communities in South Central Los Angeles.670  There was extensive looting by African Americans of stores owned by Asian Americans.671  The police failed to protect Korean businesses from looting.672  In condemning the jury verdict, Mayor Bradley may have inspired the ensuing riot.673  Rioters pulled White and Hispanic men from their vehicles and beat them severely.674  National Guard and federal troops were deployed to quell the riots.  An assertion of superior force by law enforcement and the military brought the riots to an end.675 There was certainly much pent-up outrage over mistreatment of African Americans by the police and the city which resulted in the violent rioting.676  However, the vicious attacks on the Korean American community suggests that something else was involved.  There was quite obviously much resentment by African Americans of Koreans and to some extent the acquittal of the police officers was seen as an excuse to attack a despised rival minority community.  This in turn led to Korean American identity and activism.677   Unlike the urban riots of the 1960s, the 1992 Los Angeles Riot was primarily a singular affair.  It was provoked by a local incident and responded to local conditions although smaller disturbances occurred in several other cities as well. XXIII.    GEORGE FLOYD PROTESTS AND RIOTS In May 2020, George Floyd, an African American, was killed when a Minneapolis police officer placed his knee on Floyd’s neck for almost nine  667. Id. 668. Id. 669. Id. 670. Id. 671. GILJE, supra note 47, at 175. 672. 1992 RIOTS, supra note 660. 673. Id. 674. Id.; GILJE, supra note 47, at 175. 675. 1992 RIOTS, supra note 660. 676. Id. 677. Id. 69Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  710 ST. MARY’S LAW JOURNAL [Vol. 55:641 minutes.678  Protests broke out in Minneapolis and across the nation.679  The immediate subject of the protests was the death of George Floyd, however, the deaths of several other African Americans at the hands of the police in recent years were in the background.680  Most of the protests were peaceful but some turned violent with the burning of buildings and vehicles and the throwing of bricks and bottles at the police.681  The corner where Floyd was killed was renamed George Floyd Square after being turned into an “autonomous zone” by protestors.682  Protestors also seized several city blocks in Seattle and Portland and declared them autonomous zones.683  A mob destroyed many businesses along the “Magnificent Mile” in Chicago.684  Several monuments, including those to George Washington, Thomas Jefferson, Andrew Jackson, and Gandhi, were vandalized or  678. How George Floyd Died, and What Happened Next, N.Y. TIMES (July 29, 2022), https://www.nytimes.com/article/george-floyd.html [https://perma.cc/S6S8-3T5H].  Derrick Chauvin, the officer who kneeled on Floyd’s throat, was found guilty of second-degree murder and was sentenced to 22.5 years in prison.  Id. 679. Id. 680. George Floyd: Timeline of Black Deaths and Protests, BBC (Apr. 22, 2021, 10:37 AM), https://www.bbc.com/news/world-us-canada-52905408 [https://perma.cc/Y4HP-XF3D].   Included were the deaths of Michael Brown in Ferguson Missouri, Eric Garner in New York City, Freddie Gray in Baltimore, and Breonna Taylor in Louisville. 681. Ian Lovett, 1992 Los Angeles Riots: How the George Floyd Protests Are Different, WALL ST. J. (June 4, 2020, 5:30 AM), https://www.wsj.com/articles/how-george-floyd-protests-in-los-angeles-differ-from-1992-riots-11591263005# [https://perma.cc/5B92-QSXR]; George Floyd Death: Widespread Unrest as Curfews Defied Across U.S., BBC (May 31, 2020, 6:29 AM),  https://www.bbc.com/news/world-us-canada-52865206# [https://perma.cc/R7AA-CVLF]. 682. Betsy Reed, Minneapolis Removes Barricades to Reopen George Floyd Square, THE GUARDIAN (June 2021), https://www.theguardian.com/us-news/2021/jun/03/george-floyd-square-minneapolis-barricades [https://perma.cc/4LLN-QXYC]; James Walsh, Shrine to George Floyd Could Be Permanent at Minneapolis Intersection, MINNEAPOLIS STAR TRIB. (June 12, 2020, 9:59 PM), https://www.startribune.com/shrine-to-george-floyd-could-be-permanent-at-38th-and-chicago/571211342/ [https://perma.cc/8DVB-MM3Q]. 683. Mike Baker, Free Food, Free Speech, and Free of Police: Inside Seattle’s ‘Autonomous Zone’, N.Y. TIMES (July 6, 2020), https://www.nytimes.com/2020/06/11/us/seattle-autonomous-zone.html [https://perma.cc/T553-ZC55]; Mike Baker, After Nearly a Year of Unrest, Portland Leaders Pursue a Crackdown, N.Y. TIMES (June 18, 2021), https://www.nytimes.com/2021/04/27/us/portland-protests-mayor-ted-wheeler.html#:~:text=655-,After%20Nearly%20a%20Year%20of%20Unrest%2C%20Portland%20Leaders%20Pursue%20a,the%20murder%20of%20George%20Floyd. [https://perma.cc/L7RU-6VGX]. 684. Amanda Albright, George Floyd Protests Hammer Cities Just as They Try to Reopen, FORTUNE (May 31, 2020, 9:39 PM), https://fortune.com/2020/05/31/george-floyd-protests-cities-reopen/ [https://perma.cc/38JT-U4PS]. 70St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 711 destroyed.685  The riots, which continued for the better part of a year, resulted in at least two billion dollars of property damage.686  The National Guard and military were called in to assist law enforcement.687  At least nineteen people died and thousands were arrested.688  In almost every respect, the protests and riots constituted the largest civil disturbance in United States history.689  Unlike previous urban riots, the George Floyd riots involved extensive participation by street gangs and other criminal organizations.690 The George Floyd protests and riots provide an excellent case study for establishing a line dividing lawful constitutionally protected protest from unlawful defiance.  Peacefully marching and chanting in public is activity firmly protected by the First Amendment.691  Now, with respect to public demonstrations, the state does have the right to adopt and enforce  685. Joseph Guzman, George Washington Statute Toppled, American Flag Burned by Portland Protestors, THE HILL (June 19, 2020), https://thehill.com/changing-america/respect/equality/503559-george-washington-statue-vandalized-and-toppled-by/ [https://perma.cc/XN3H-PM7W]; A Disgrace, Says Trump on Gandhi Statue Desecration, TRIB. INDIA (June 10, 2020, 8:38 AM), https://www.tribuneindia.com/news/nation/a-disgrace-says-trump-on-gandhi-statue-desecration-96868 [https://perma.cc/SU4X-G7YG]; Katie Warren, Four Men Were Charged for Trying to Tear Down a Statue of President Andrew Jackson Near the White House, BUS. INSIDER (June 28, 2020, 4:27 PM), https://www.businessinsider.com/andrew-jackson-statue-men-tried-tear-down-2020-6 [https://perma.cc/P5WC-R6SR]. 686. Jennifer A. Kingson, Exclusive: $1 Billion-Plus Riot Damage Is Most Expensive in Insurance History, AXIOS (Sep. 16, 2020), https://www.axios.com/2020/09/16/riots-cost-property-damage [https://perma.cc/JX8S-DXQU]. 687. Katie Warren & Joey Hadden, How All 50 States Are Responding to the George Floyd Protests, from Imposing Curfews to Calling in the National Guard, BUS. INSIDER (June 4, 2020, 2:22 PM), https://www.businessinsider.com/us-states-response-george-floyd-protests-curfews-national-guard-2020-6 [https://perma.cc/46N2-6DNF]. 688. Jemima McEvoy, 14 Days of Protests, 19 Dead, FORBES (June 8, 2020, 6:34 PM), https://www.forbes.com/sites/jemimamcevoy/2020/06/08/14-days-of-protests-19-dead/?sh=48c7a5794de4 [https://perma.cc/4LUF-5L2K]; https://www.usatoday.com/story/news/factcheck/2022/02/22/fact-check-thousands-black-lives-matter-protesters-arrested-2020/6816074001/. 689. Kingson, supra note 686. 690. Evan Perez & David Shortell, Police Point Finger at Gangs and Local Groups for Riot Damages, Contradicting Trump’s Claims, CNN (June 10, 2020, 10:01 AM),  https://www.cnn.com/2020/06/10/politics/gangs-protests-blame-antifa/index.html [https://perma.cc/JX4K-Y6JL]. 691. The doctrine is known as the public forum doctrine.  See United States v. Grace, 461 U.S. 171, 177 (1983) (explaining the public forum doctrine limits the government’s ability to restrict expressive conduct in public places); see also Perry Educ. Ass’n v. Perry Loc. Educators Ass’n, 460 U.S. 37, 55 (1983) (“In a public forum, by definition, all parties have a constitutional right of access and the State must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint, or a single subject”). 71Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  712 ST. MARY’S LAW JOURNAL [Vol. 55:641 reasonable time, place, and manner restrictions.692  In addition, the police can impose reasonable restrictions on protest activity to protect life and property.693  On the other hand, destruction of property, violence against law enforcement, and looting are unlawful and unprotected regardless of how just the underlying cause or how great the anger fueling the protest.  This seems like an easy enough line to draw and yet enforcement may be difficult in the event of a mass peaceful demonstration which poses the likelihood of becoming violent and destructive in a moment.  As with many previous demonstrations, some have used the mass movement and the righteous anger that provoked it as an excuse for looting.694  The inability to enforce the distinction between peaceful protest and violence may be blurred by official sympathy with the goals of the protest engendering a hesitancy to enforce the law against looting and burning.  Moreover, when the subject of the protest is excessive use of force by the police, law enforcement may be hesitant to respond to violence, especially violence directed at them, with the force necessary to contain a riot.  In addition, the theory exists that using force, especially military force to put down riots can be counterproductive increasing the likelihood of violence by protestors.695  As a result the police may be required to stand helplessly by and simply watch burning and looting instead of attempting to quell it.  Thus, in the context of recent mass demonstrations, looting and violence seems inevitable. XXIV.    CAPITOL INVASION OF JANUARY 6 On January 6, as Congress was counting the electoral ballots, a mob of angry citizens stormed the Capitol delaying the vote count.696  The invasion  692. See Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 294 (1984) (noting restrictions which may not have reference to the content of the related speech); Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (“Our cases make equally clear, however, that reasonable ‘time, place and manner’ regulations may be necessary to further significant governmental interests, and are permitted.”); Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981) (reiterating the activities protected by the First Amendment are subject to reasonable time, place, and manner restrictions). 693. Clark, 468 U.S. at 294; Grayned, 408 U.S. at 116; Heffron, 452 U.S. at 648. 694. Perez & Shortell, supra note 690. 695. Shaila Dewan & Mike Baker, Facing Protests Over Use of Force, Police Respond with More Force, N.Y. TIMES (June 2, 2020), https://www.nytimes.com/2020/05/31/us/police-tactics-floyd-protests.html [https://perma.cc/Q3FX-SZMK]. 696. Alex Woodward, What Happened in Washington DC Yesterday? A Timeline of Insurrection, THE INDEPENDENT (Jan. 7, 2021, 3:27 PM),   72St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 713 and the attempt to interfere with the confirmation of Joe Biden’s election was planned well in advance.697  Authorities were aware of the plan to invade the Capitol due to online chatter at least a week beforehand, however, the Pentagon refused a request to deploy National Guard Troops because the “optics” would be bad.698 On the morning of January 6, President Trump held a rally on the Ellipse.699  He argued that Vice President Pence, presiding over the vote counting in the Senate, should send the ballots back to the state legislatures for further proceeding.700  Pence has argued that he lacked authority to do so, a position that almost certainly would have been sustained by the courts.701  Trump did not urge the crowd to storm or invade the Capitol.702  He did say that the crowd should peacefully march to the Capitol and he further declared the people would need to fight to save the country.703   https://www.the-independent.com/news/world/americas/us-politics/capitol-riots-what-happened-washington-dc-timeline-b1783562.html [https://perma.cc/4G9F-QGEV]. 697. Jemima McEvoy, Capitol Attack Was Planned Openly Online for Weeks—Police Still Weren’t Ready, FORBES (Jan. 7, 2021, 10:43 AM),  https://www.forbes.com/sites/jemimamcevoy/2021/01/07/capitol-attack-was-planned-openly-online-for-weeks-police-still-werent-ready/?sh=315605ff76e2 [https://perma.cc/HH9G-WH7T]. 698. Peter Beaumont, Ex-Head of Capitol Police: Officials Reluctant to Call in National Guard, THE GUARDIAN (Jan. 11, 2021, 5:50 PM), https://www.theguardian.com/us-news/2021/jan/11/head-capitol-police-steven-sund-mob-assault-recounts-security-failings [https://perma.cc/A6HB-BNRC]. 699. Brian Naylor, Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021, 2:43 PM), https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial [https://perma.cc/L7TX-QFHU]. 700. Annie Karni & Maggie Haberman, Trump Openly Condones Supporters Who Violently Stormed the Capitol, Prompting Twitter to Lock His Account, N.Y. TIMES (Jan. 6, 2021),  https://www.nytimes.com/2021/01/06/us/politics/trump-protesters.html [https://perma.cc/8W5D-8ELJ]; Aaron Glantz, Read Pence’s Full Letter Saying He Can’t Claim ‘Unilateral Authority’ to Reject Electoral Votes, PBS (Jan. 6, 2021, 1:43 PM),  https://www.pbs.org/newshour/politics/read-pences-full-letter-saying-he-cant-claim-unilateral-authority-to-reject-electoral-votes [https://perma.cc/LF7C-AD88]; see Sam Cabral, Capitol riots: Did Trump’s Words at Rally Incite Violence?, BBC (Feb. 13, 2021), https://www.bbc.com/news/world-us-canada-55640437 [https://perma.cc/76C7-FTDR].  Certainly, the indictment and any subsequent conviction will be dismissed for violation of his rights pursuant to the First Amendment. 701. Karni & Haberman, supra note 700; Jim Rutenburg et al., 77 Days: Trump’s Campaign to Subvert the Election, N.Y. TIMES (June 14, 2022), https://www.nytimes.com/2021/01/31/us/trump-election-lie.html [https://perma.cc/XC8T-EMZC]. 702. Aaron Blake, What Trump Said Before His Supporters Stormed the Capitol, Annotated, WASH. POST (Jan 11, 2021), https://www.washingtonpost.com/politics/interactive/2021/annotated-trump-speech-jan-6-capitol/ [https://perma.cc/M793-KD8R]. 703. Id. 73Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  714 ST. MARY’S LAW JOURNAL [Vol. 55:641 Trump finished his speech at 1:12 p.m.704  Prior to that time thousands were marching to the Capitol.705  Pipe bombs were discovered earlier near both the Democratic and Republican National Committee headquarters.706  It has been suggested that this was done to distract law enforcement from the imminent Capitol invasion.707  The mob arrived at the Capitol, overwhelmed the police and broke in.708  Among the invaders were members of various right wing extremist groups including the Proud Boys, the Oath Keepers, Q’Anon, and Boogaloo.709  Members of the Senate and House were rushed to safety.710  The mob roamed freely through the Capitol building doing thirty million dollars’ worth of damage.711  One of the invaders, Ashli Elizabeth Babbitt, was shot and killed by Capitol police as she  704. Lauren Leatherby et al., How a Presidential Rally Turned into a Capitol Rampage, N.Y. TIMES (Jan. 12, 2021), https://www.nytimes.com/interactive/2021/01/12/us/capitol-mob-timeline.html [https://perma.cc/D2YA-LU8J]. 705. See generally id. (describing the events taking place at the capitol prior to Trump’s speech ending). 706. Katie Benner et al., An Explosive Device Is Found at the R.N.C., and the D.N.C. Is Evacuated, N.Y. TIMES (Jan. 6, 2021), https://www.nytimes.com/2021/01/06/us/politics/pipe-bomb-rnc.html [https://perma.cc/X2VD-ABL2]; Betsy Woodruff Swann et al., Harris Was Inside DNC on Jan. 6 When Pipe Bomb Was Discovered Outside, POLITICO (Jan. 6, 2021, 4:55 PM),  https://www.politico.com/news/2022/01/06/harris-was-inside-dnc-on-jan-6-when-pipe-bomb-was-discovered-outside-526695 [https://perma.cc/7CH7-UUJZ]. 707. Swann et al., supra note 706. 708. Ashley Parker et al., How the Rioters Who Stormed the Capitol Came Dangerously Close to Pence, WASH. POST (Jan. 15, 2021), https://www.washingtonpost.com/politics/pence-rioters-capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b-f1381ef3d207_story.html [https://perma.cc/6LWF-GCAG]; see generally Charles D. Samuelson, Why Were the Police Attacked on January 6? Emergent Norms, Focus Theory, and Invisible Expectations, 26 GRP. DYNAMICS: THEORY, RSCH. & PRAC. 178 (2022) (discussing the violent acts of January 6). 709. Natalie Reneau et al., Proud Boys Led Major Breaches of Capitol on Jan. 6, Video Investigation Finds, N.Y. TIMES (July 11, 2022), https://www.nytimes.com/2022/07/12/us/politics/proud-boys-jan-6.html [https://perma.cc/HQ6U-5M5C]; Matthew Kriner & Jon Lewis, The Oath Keepers and Their Role in the January 6 Insurrection, COMBATING TERRORISM CTR. AT WEST POINT (Dec. 2021), https://ctc.westpoint.edu/the-oath-keepers-and-their-role-in-the-january-6-insurrection/ [https://perma.cc/ZK6P-WNCV]; Alix Culberson, U.S. Capitol: Q-Anon, Confederate Flag Man, and Baked Alaska—Here Are the People Who Stormed the Building, SKYNEWS (Jan. 8, 2021, 11:44 AM), https://news.sky.com/story/us-capitol-from-neo-nazis-and-conspiracy-theorists-to-a-politician-who-stormed-the-capitol-12181628 [https://perma.cc/H55J-NFZ7]. 710. Karoun Demirjian et al., Inside the Capitol Siege: How Barricaded Lawmakers and Aides Sounded Urgent Pleas for Help as Police Lost Control, WASH. POST (Jan. 10, 2021, 12:07 AM), https://www.washingtonpost.com/politics/inside-capitol-siege/2021/01/09/e3ad3274-5283-11eb-bda4-615aaefd0555_story.html [https://perma.cc/S77B-KR7H]. 711. Bill Chappell, Architect of the Capitol Outlines $30 Million in Damages from Pro-Trump Riot, NPR (Feb. 24, 2021, 1:56 PM),  https://www.npr.org/sections/insurrection-at-the-capitol/2021/02/24/970977612/architect-of-the-capitol-outlines-30-million-in-damages-from-pro-trump-riot [https://perma.cc/V2NT-2WBA]. 74St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 715 attempted to climb through a broken glass door inside of the building.712  By late afternoon, order was restored and the vote counting proceeded.713 President Trump was impeached by the Democrat controlled House of Representatives for inciting an insurrection, however he was acquitted by the Republican controlled Senate.714  Over a thousand were arrested, many based on video taken during the invasion.715  Although White supremacist and insurrectionist groups were involved in planning and participated in the event, a study in the Atlantic found that 89% of those arrested had no ties to these militant groups.716  Approximately 20% of the participants had been in the military, many were business owners, twenty-eight law enforcement officers, at least fifty elected officials, and one former congressional candidate participated.717  In other words, this was not an ordinary mob.   712. Rich Schapiro et al., Officer Who Shot Ashli Babbitt During Capitol Riot Breaks Silence: ‘I Saved Countless Lives’, NBC NEWS (Aug. 26, 2021, 5:30 PM), https://www.nbcnews.com/news/us-news/officer-who-shot-ashli-babbitt-during-capitol-riot-breaks-silence-n1277736 [https://perma.cc/J52W-FKRV]. 713. CAROL LEONNIG & PHILIP RUCKER, I ALONE CAN FIX IT, DONALD J. TRUMP’S CATASTROPHIC FINAL YEAR 481–484 (2021). 714. Jeremy Herb & Manu Raju, House of Representatives Impeaches President Donald Trump, CNNPOLITICS (Dec. 19, 2019, 5:43 AM), https://www.cnn.com/2019/12/18/politics/house-impeachment-vote/index.html [https://perma.cc/YK3T-HXPP]; Nicholas Fandos, Trump Acquitted of Inciting Insurrection, Even as Bipartisan Majority Votes ‘Guilty’, N.Y. TIMES (Feb. 13, 2021), https://www.nytimes.com/2021/02/13/us/politics/trump-impeachment.html [https://perma.cc/UB7M-QNWF]. 715. Alan Feuer & Molly Cook Escobar, The Jan. 6 Riot Inquiry So Far: Three Years, Hundreds of Prison Sentences, N.Y. TIMES (Jan. 3, 2024),  https://www.nytimes.com/interactive/2024/01/04/us/january-6-capitol-trump-investigation.html [https://perma.cc/H6TQ-NU9E]; Reneau et al., supra note 709. 716. Robert A. Pape & Keven Ruby, The Capital Rioters Aren’t Like Other Extremists, THE ATLANTIC (Feb. 2, 2021), https://www.theatlantic.com/ideas/archive/2021/02/the-capitol-rioters-arent-like-other-extremists/617895/ [https://perma.cc/2XQX-EZNS]. 717. Id.; Michael Ricciardelli, A Demographic and Legal Profile of January 6 Prosecutions, SETON HALL UNIV. (July 26, 2023), https://www.shu.edu/news/a-demographic-and-legal-profile-of-january-6-prosecutions.html [https://perma.cc/SM3F-HYUU]; Linda So et al., Off-Duty Cops, Other Officials Face Reckoning After Rallying for Trump in D.C., YAHOO!NEWS (Jan. 13, 2021), https://news.yahoo.com/off-duty-cops-other-officials-214902576.html [https://perma.cc/W8GB-BM2Q]; Shahid Meighan, Columbus Man and Former Congressional Candidate Charged in Jan. 6 Assault on U.S. Capitol, COLUMBUS DISPATCH (Feb. 24, 2024, 2:03 PM),  https://www.dispatch.com/story/news/local/2024/02/23/columbus-man-and-former-gop-congressional-candidate-charged-in-jan-6-assault-on-us-capitol/72718069007/ [https://perma.cc/LAM9-96ZC].  A response by the University of Maryland’s Consortium for the Study of Terrorism and Responses to Terrorism pointed out that 35% of the persons arrested did have a link to extremist groups.  Michael Jensen, It Wasn’t Just Proud Boys.  Interconnected Extremists Converged on Jan. 6., WASH. POST (June 17, 2022, 4:38 PM),   75Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  716 ST. MARY’S LAW JOURNAL [Vol. 55:641 The mob was upset by the belief that the election had been stolen.718  As with the George Floyd rioters, their righteous anger did not excuse their violent behavior.  A peaceful march and protest outside of the Capitol were certainly protected conduct.  Breaking and entering the building, acting violently toward the police and destroying property was criminal behavior which could and should be punished.  Insurrection is a federal crime.719  Although politicians characterize the Capitol invasion as insurrectionary activity, the leaders were charged with seditious conspiracy.720  Individuals that deliberately defy the law and engage in violent and destructive behavior on behalf of a partisan cause must be prepared to accept the legal consequences without excuse. The contrast between the treatment of those participating in the George Floyd riots and the Capitol invasion was stark.  Both occurred in the same year.  Both involved significant destruction of property and loss of life.  Both were in defiance of law.  Both were in violation of legitimate law and as such both warranted significant criminal punishment.  The Capitol invaders were prosecuted vigorously, the leaders receiving lengthy prison sentences.721  The George Floyd rioters were not.722  There may be explanations for this discrepancy.  Perhaps it was more difficult to identify and apprehend the George Floyd rioters.  But one explanation stands out–elite sympathy for the cause.  Severe police brutality toward African Americans was considered outrageous, which it was.  Interfering with a presidential election favoring Donald Trump did not evoke the same emotional response by the elites and the media.  Was the official response to the protests colored by partisan considerations?  If so, it suggests that  https://www.washingtonpost.com/outlook/2022/06/17/january-6-hearings-extremists-proud-boys/ [https://perma.cc/9LZS-APBP]. 718. Blake, supra note 702. 719. Spencer S. Hsu et al., Oath Keepers Founder Stewart Rhodes Guilty of Jan. 6 Seditious Conspiracy, WASH. POST (Nov. 29, 2022, 7:52 PM), https://www.washingtonpost.com/dc-md-va/2022/11/29/rhodes-oathkeepers-sedition-verdict-jan6/ [https://perma.cc/9KSF-RECS]. 720. Id. 721. Many of the leaders of the Capitol invasion were sentenced between twelve and eighteen years in prison.  Court Sentences Two Oath Keepers Leaders to 18 Years in Prison on Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach, U.S. ATTY’S OFF. (May 25, 2023),  https://www.justice.gov/usao-dc/pr/court-sentences-two-oath-keepers-leaders-18-years-prison-seditious-conspiracy-and-other?ref=human-synthesis.ghost.io [https://perma.cc/L6GE-T5NC]. 722. Alanna Durkin Richer et al., Records Rebut Claims of Unequal Treatment of Jan. 6 Rioters, AP NEWS (Aug. 30, 2021, 4:59 AM), https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8 [https://perma.cc/LAH2-JKQ6].  Although the article argued that there was no significant disparity, the facts that the article relied on suggested the opposite. 76St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 717 rule of law values may depend on whose ox is being gored.  It may well be that the George Floyd Riots and the January 6 Capitol invasion were too recent and too controversial from a partisan standpoint to obtain sufficiently objective information. CONCLUSION Deliberate defiance of legal authority, usually as a protest against the legitimacy or justice of the law or that authority, has been part of the American landscape from the outset.  As a matter of perspective, defiance is very much the exception rather than the rule.  If it were otherwise, it would be impossible to maintain a civil society.  Perhaps a reason why defiance, when it occurs, receives so much attention is because it is beyond the norm.  Defiance of law teaches many lessons.  One common lesson that defiance teaches is that the laws are unjust and need to be changed.  This was the lesson of the Civil Rights Movement in the 1960s as well as the labor riots that extended for several decades.  Another closely related lesson is that enforcement practices need adjustment.  This was a lesson of the urban riots of the 1960s as well as those in response to the Rodney King case and the George Floyd murder as well as the Stonewall Riots.  Yet another lesson of defiance, perhaps illustrated by many incidents including the George Floyd Riots as well as the Capitol invasion, is frustration with the seeming difficulty of obtaining legal change.  Yet another lesson of defiance is that the law is extremely unpopular and unenforceable.  This may be the lesson of the defiance of Prohibition laws as well as the Supreme Court’s school prayer decisions.  Sometimes, defiance of law led to major revision of the laws.723  But sometimes it did not, as with the resistance to the Court’s school prayer decisions.724 Often defiance is the result of disagreement as to what the law is.  That may have been the case with respect to the American Revolution.  England declared that Parliament was the appropriate lawgiver and it had declared that it could tax and regulate the colonies under all circumstances.725  The colonists replied that the proper principle was “no taxation without representation.”726  So, there was a basic disagreement as to the governing  723. See Engel v. Vitale, 370 U.S. 421, 424, 436 (1962) (discussing the legality of state officials endorsing a state prayer and decisively concluding such action violates the Establishment Clause). 724. See State ex rel. Weiss v. Dist. Bd., 44 N.W. 967, 968, 982 (Wis. 1890) (holding a teacher’s act of reading Bible to students violated the law). 725. MILLER, AMERICAN REVOLUTION, supra note 48, at 181. 726. Id. at 212. 77Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  718 ST. MARY’S LAW JOURNAL [Vol. 55:641 democratic principle.  Nevertheless, the colonists knew that by revolting, they were defying the existing governing law and that there would be consequences.  The very attempt to justify such defiance in the Declaration of Independence illustrates that the colonists well understood that they were acting in defiance of the governing law despite considering that law oppressive and tyrannical. Another example of such a disagreement is the Civil War.  Lincoln and the North understood that the union was indivisible.727  The seceding states believed that secession was legally permissible if the federal government violated core principles such as prohibiting slavery in the territories or by abolishing slavery where it already existed.728  Both positions could not be realized.  A bloody civil war was necessary to resolve the question.  The Supreme Court in M’Culloch v. Maryland and Daniel Webster in his reply to Hayne had made the case for the popular sovereignty theory and hence the indivisibility of the union however that was not enough.729  The seceding states realized that they were defying the law as Lincoln understood it and that consequences would follow. The reaction to the Supreme Court’s decision in M’Culloch v. Maryland was another example of a disagreement as to what the law is.  In M’Culloch, Chief Justice Marshall took a strong federalist view of constitutional power.730  Those who disagreed, like the political establishment of Ohio in Osborn v. Bank of the United States, took a states’ rights view of constitutional power.731  This was a question that would ultimately be resolved by the North’s victory in the Civil War. The same type of disagreement existed with respect to the Civil Rights Movement.  Under the South’s conception of federalism, the states were free to adopt laws imposing racial segregation across the board (validated by the Supreme Court in Plessy v. Ferguson) and localities were permitted to adopt ordinances which made it difficult if not impossible to conduct protests of such segregation laws.732  The Civil Rights Movement  727. McPherson, supra note 196. 728. Id. 729. See M’Culloch v. Maryland, 17 U.S. 316, 322–30 (1819) (“Congress, by the constitution, is invested with certain powers; and as to the objects, and within the scope of these powers, it is sovereign.”). 730. See id. at 433–37 (upholding the supremacy of the federal government). 731. Osborn v. Bank of U.S., 22 U.S. 738, 739–40 (1824). 732. See Plessy v. Ferguson, 163 U.S. 537, 551–52 (1896) (holding that it was not the duty of the legislature to force comingling of the races—it only had to ensure races had “equal rights before the law”), overruled by  Brown v. Bd. of Educ., 347 U.S. 483 (1954). 78St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 719 advocated that the south’s conception of the Constitution was flawed.733  Although federalism was an important constitutional principle, with respect to racial segregation, it was overridden by the Equal Protection Clause of the Fourteenth Amendment.734  As to protest marches and activities, the Civil Rights Movement argued that the First Amendment, properly understood, prohibited localities from effectively banning such protests.735  So from this perspective, there was no defiance of law by the civil rights activists.  It was merely a difference of opinion as to the proper understanding of the Constitution.  Still like the American Revolution, the civil rights demonstrators understood that the southern states had laws on the books which would be enforced against them.  One of the purposes of the marches and demonstrations was to obtain the invalidation of such laws.736 Another explanation for widespread defiance of law is a struggle for power (the very title of the book cited on the origins of the American Revolution).  When two different groups disagree as to the values or principles that should control, one group has the sanction of law behind it, the other group may defy that law in order achieve what it believes to be important ends.  That may go a long way toward explaining the labor violence in the last quarter of the nineteenth century and the first third of the twentieth century.  Businesses believed that they could operate as they chose without consulting with labor.  The law as it stood agreed.  Labor, on the other hand, believed it had the right to organize unions and that those unions had the right to negotiate with employers about substantive matters such as wages, the eight-hour workday, and protection for peaceful protest.  Labor and employers’ differing views led to decades of violent strikes. Defiance of Supreme Court rulings may be attributable to two explanations.  First, it may reflect a good faith disagreement with the Court’s understanding of the law.  This may explain resistance to the Court’s decisions in M’Culloch v. Maryland, the Dred Scott case, and Brown v. Board of Education.  Second, some of the resistance to earlier decisions of the Court,  733. See generally GARROW, BEARING THE CROSS, supra note 419 (discussing the Civil Rights Movement’s consistent goal of equality). 734. U.S. CONST. amend. XIV, § 1. 735. See United States v. Grace, 461 U.S. 171, 177 (1983) (holding peaceful picketing and passing out pamphlets are protected speech); Perry Educ. Ass’n v. Perry Loc. Educators Ass’n, 460 U.S. 37, 46, 55 (1983) (holding, in a public forum, the State must “demonstrate compelling reasons for restricting access to a single class of speakers,” but the same standard does not apply when dealing with “government property that has not been made a public forum”). 736. GARROW, BEARING THE CROSS, supra note 419, at 176. 79Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  720 ST. MARY’S LAW JOURNAL [Vol. 55:641 such as M’Culloch, the Cherokee territory decisions and perhaps even Dred Scott, may reflect the fact that the Court had not yet achieved the respect, which it now has, as the ultimate interpreter of the law.  In other words, resistance to these decisions would have been less or non-existent if they occurred today. Violence became a tool that defiers of the law could utilize.  Most of the violence in labor demonstrations was attributable to overreaction by employers and law enforcement.  Still, it was recognized that the media had slight interest in covering labor disputes until violence emerged.737 The same is true of the Civil Rights Movement.  It was the violent overreaction of law enforcement in Birmingham and Selma which gave power to the movement and not the protest marches themselves.  The organizers of the protests knew this and deliberately provoked a violent response. At some point, violent defiance of law may be the result of frustration with the difficulty, if not the impossibility, of procuring peaceful legal change.  This may be a partial explanation of the urban race riots.  The kettle was boiling.  Issues of police brutality, discrimination in all aspects of life, and lack of employment opportunities had been raised for years with no response.738  It only took an innocent incident to provide the spark to create a major conflagration.739  Burning and looting followed.740 Intense moral or religious beliefs may lead some persons or groups to engage in acts that are clearly in defiance of the law.  This may explain defiance by abolitionists, Jehovah’s Witnesses as well as pro-life activists.  An important corollary is that persons or groups defying the law based on moral or religious principles must either invalidate the laws as unjust or be prepared to accept the legal consequences of disobedience. Pure hatred may explain some of the acts of violence.  This may explain the defiance perpetrated as the violent response to Reconstruction culminating in the Colfax massacre.  The Tulsa Riot of 1921 would be another example as would the urban race riots during which individuals were attacked and beaten simply because they were White. Ideally, the rule of law should prevail.  In a democracy, there are legal methods of changing the law if it is outmoded or unjust.  Peaceful protest,  737. See ADAMIC, supra note 262, at 327 (expressing union belief that the organization of the steel workers was unsuccessful because it was nonviolent). 738. GILJE, supra note 47, at 159. 739. Id. at 158. 740. Id. at 159. 80St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 721 as a means of calling attention to such change, is protected by the First Amendment.  As such, there is no need for violent defiance of law.  Injury to others as well as the destruction of property are criminal acts which should be punished.  However, there are problems with the alternative of peaceful protest.  Once a peaceful protest march begins, it may be difficult if not impossible, to keep the protest focused on the issues that gave rise to it.  Dr. King learned this the hard way with the protest march in support of the garbage workers in Memphis in 1968.  The march commenced as a peaceful protest of working conditions however it was infiltrated and soon turned violent.741 The same can be said with respect to most of the urban riots.  They began as a legitimate response to police brutality, discrimination and lack of opportunity.742  But they were soon transformed into an excuse for looting, arson and violence by persons who had no understanding of the underlying grievances.743  This was especially true of the 1992 Los Angeles Riots.  These started out as a legitimate protest of the acquittal of four police officers who had beaten Rodney King.744  However, it was soon transformed into an excuse for settling old scores with the Korean community.745  Once a mob forms, it may be impossible to control its actions. There remains the question of whether non-violent protest, as favored by Dr. King, is the appropriate strategy for effecting legal change.  One problem with that approach is that it is inconsistent with human nature.  Most people, when assaulted while exercising their constitutional rights, will respond violently.  Few have the self-control or discipline of Dr. King.  Another issue, as noted previously, is that it was not the peaceful marches in Birmingham and Selma that led to success but rather the violent response of the police.  By way of contrast, Dr. King led a non-violent protest march in Albany, Georgia.746  The local sheriff did not respond violently and the protest accomplished very little.747 This observation raises the moral question of whether it is appropriate to provoke law enforcement to attack persons who are innocently exercising their constitutional rights for the long term good of the cause.  Dr. King  741. Brown, supra note 417. 742. 1992 RIOTS, supra note 660. 743. Id. 744. Id. 745. Id. 746. See generally GARROW, BEARING THE CROSS, supra note 419 (detailing the facts of the Albany protests). 747. Id. at 175 81Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  722 ST. MARY’S LAW JOURNAL [Vol. 55:641 seemed to say no, however other leaders of the Movement disagreed and deliberately provoked the police to respond violently.748 This leads to the question of whether non-violent protest of the type advocated by Dr. King was ineffective.  If it only works where there is violent resistance, eventually law enforcement will learn that it can defeat the protest by not responding violently.  If the cause is just and if the law sides with the Movement’s opponents, why should the Movement restrict itself to non-violent protest?  Dr. King debated this issue with those who favored proceeding by “any means necessary” such as Stokley Carmichael of the SNCC.749  For Dr. King, it was a matter of deeply held Christian faith.  For those who were not as motivated by religious faith as Dr. King, pragmatic concerns govern.  As Dr. King’s example illustrates, non-violent protest frequently works.  This is especially true given the positive publicity that has surrounded Dr. King and his non-violent approach.  On the other hand, Dr. King’s failure late in his career when he attempted to apply his southern strategy to a northern city along with his resulting despondency should give rise to caution.750  Perhaps there are inherent limits to the effectiveness of non-violent protest. A partial explanation of violent labor strikes as well as the urban riots is pure frustration.  In each instance, labor and African American urban dwellers were subjected to dreadful inhumane conditions with no hope for positive change through the legal process.  The law was not simply neutral but was an opponent of change.  In the labor context, law enforcement tended to side with employers against labor.  While labor was responsible for the destruction of property, most loss of life was at the hands of employers and law enforcement.  Over time, labor learned that there was no prospect for ameliorating dreadful working conditions through legal means. The same was true with respect to urban African Americans.  Complaints about police brutality, racial discrimination and the absence of economic opportunity had been raised for decades and seemed to fall on deaf ears.  Frustration and pressure built up over decades.  It only took a spark to set off the explosion.751  If it appeared hopeless to proceed through peaceful legal channels, violent action seemed more appealing.   748. Id. at 248. 749. Id. at 481; Franklin, supra note 646. 750. GARROW, BEARING THE CROSS, supra note 419, at 495, 524–25, 611. 751. See COHEN & MURPHEY, supra note 618, at 257 (exploring the systemic problems that precipitated the race riots). 82St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 723 Law enforcement is justified taking whatever steps may be warranted to protect the public against bodily harm and to protect private property against injury or destruction.  That is the very essence of the rule law in a civilized society.  In the process of enforcing the rule of law, innocent people may be injured or killed as happened in most of the urban riots.  That is tragic but largely unavoidable.  On the other hand, law enforcement must respect people’s rights to the extent possible under the circumstances including the right to assemble and peacefully protest guaranteed by the First Amendment.  This will cause law enforcement to make difficult decisions as to what is necessary to preserve peace and law and order.  Deference should be accorded to decisions that are made in time of crisis so long as they take serious account of the rights of the people. It may be, as a practical matter, that defiance which leads to well accepted changes in the law, may in retrospect seem warranted.  This would certainly be the case with the American Revolution, the labor wars and the Civil Rights Movement.  But this may be a matter of historical contingency.  For instance, had the confederacy prevailed in the Civil War, would that justify secession?  Perhaps this indicates that evaluating defiance is always a matter of somewhat subjective perspective.  If one approaches the issue from a strong rule of law perspective, then perhaps all defiance of law, no matter how justified the cause, is wrong.  Legal change can only be accomplished through the requisite orderly procedures.  However, from an achievement of justice perspective, any defiance of legal authority which moves society closer to a particular conception of justice is justified.  Between these extremes is room for debate on specific cases. The inclusion of the American Revolution causes difficulty.  If the American Revolution is an example, perhaps the ultimate example of the defiance of legal authority, then all that follows may be justified.  The Revolution and the Constitutional Convention set up the rule of law system that follows.  Does the example of the Revolution justify all subsequent defiance or is the appropriate lesson that it led to legal channels through which all legitimate protest must proceed?  In other words, was the Revolution a “one off” or was it a grand example of the continual necessity of defiance? In our divided and hyper-partisan environment, has defiance of law simply become one more partisan football to be kicked around for potential political gain?  Should the defiance of law in the wake of the death of George Floyd be subject to the same analysis as the Capitol invasion which occurred in roughly the same time period?  Both involved significant 83Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024  724 ST. MARY’S LAW JOURNAL [Vol. 55:641 destruction of property, loss of life and attacks on law enforcement officers.  Both were inflamed by rage.  And yet partisan politicians seemed to condemn one but not the other.  Perhaps they are distinguishable.  The George Floyd Riots persisted for much longer, resulted in greater destruction and involved looting that seemed to have been done entirely for personal gain rather than in a necessary support of a cause.752  On the other hand, the Capitol invasion was an attack on the seat of and very processes of the constitutional order designed to ensure a peaceful transfer of political authority.753  Both were fueled by debatable factual assumptions.  Is the United States an incurably racist nation and are the police on a mission to abuse unarmed African Americans?  Was the Presidential election of 2020 stolen by illegal means?  These are questions that inspire the wrath of the protestors.  If persons believe either of these propositions, they are likely to be susceptible to violent mob activity since they believe that working through the system in a non-violent manner is bound to be ineffective.  If persons who are convinced that the system has failed remain a minority, the process of non-violent resolution of disagreement can proceed with fits and starts.  However, if a majority, or even a significant minority gives up hope in internal correction of issues, then the system of rule of law will collapse. The United States has a long tradition both of respect for the rule of law and its procedures as well as defiance of the law and those procedures.  It is probable that in a diverse and democratic society, defiance is a necessary part of the evolutionary process.              752. Kingson, supra note 686. 753. See Blake, supra note 702 (describing Trump’s speech as urging a peaceful demonstration to preserve democracy). 84St. Mary's Law Journal, Vol. 55 [2024], No. 3, Art. 1https://commons.stmarytx.edu/thestmaryslawjournal/vol55/iss3/1  2024] DEFIANCE 725                      85Bloom: DefiancePublished by Digital Commons at St. Mary's University, 2024

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