Little's attorney ventures into new legal territory with Silent Sam and Constitution

Ever since a self-proclaimed Neo-Nazi drove his Dodge Challenger into a crowd of people protesting a 2017 Unite the Right Rally in Charlottesville, Virginia, the presence of Confederate monuments on public property has come under scrutiny in the media and on UNC's campus. 

The chaos following the fatal hit-and-run, which occurred about one mile from University of Virginia's campus, sparked a movement of voices and activism. It also galvanized Silent Sam protests at UNC, which had occurred for decades but became more contentious following the attack.

Last week, Maya Little, the UNC graduate student who doused Silent Sam and its pedestal in red paint and her blood in April, faced the charge of defacing a public monument at the Orange County Courthouse.

“There aren't really a lot of cases like this litigated yet,” said her attorney Scott Holmes, a law professor at North Carolina Central University. “So this is all kind of new in the law.”

Maya Little was found guilty by District Court Judge Samantha Cabe, who continued judgement rather than entering it, meaning Little has not been issued a punishment. 

Holmes contended that the University's endorsement of Silent Sam’s presence violated the Equal Protection Clause in the Constitution, in the same manner in which it would be unconstitutional for the University to endorse a religion because of the Establishment Clause. 

Holmes called numerous witnesses in an effort to portray Silent Sam as a marker of white supremacy, and to argue that its presence constituted discriminatory harm to black students at the University. 

Chapel Hill Mayor Pam Hemminger and Chapel Hill Police Chief Chris Blue testified they hope the statue will be relocated. Student activists and UNC professor Kenneth Janken testified to the dangerous atmosphere the statue’s presence creates, citing incidents at McCorkle Place that have resulted in violence. Holmes also filed an unsuccessful subpoena in an attempt to have Chancellor Carol Folt testify. 

With each witness, Holmes tried to build a case that Little’s actions — dousing the statue and its pedestal in red paint and her blood — were justified under the necessity defense, which asserts that citizens can violate laws that contradict the big-picture wishes of the Constitution. 

“In our history, people have had to commit crimes in order to raise the issues,” Holmes said. “Because the laws and the government’s complicity in racism has required them to break the law.”

Holmes linked Little’s case to that of the Friendship Nine, a group of black men who were arrested for staging a sit-in at a segregated lunch counter in South Carolina in 1961. 

“It sometimes becomes necessary to break some sort of technical minor law in order to vindicate the broader values of the Constitution,” Holmes said.

In 2015, the Friendship Nine's convictions were ceremoniously overturned. At court, the judge — the nephew of the judge who originally sentenced the group — said, "We cannot rewrite history, but we can right history.”

Holmes said he noted comparisons in the cases to argue that Little’s charges were the same sort of situation, civil disobedience that would be considered favorably in the eyes of history, like the illegal assistance northerners gave to slaves on the Underground Railroad, a violation of the Fugitive Slave Act.

The Equal Protection Clause has also been cited in lawsuits pertaining to courthouses’ display of the Confederate flag, but those cases were civil whereas Little’s was criminal. The combination of the necessity defense in conjunction with the Equal Protection violation is new, Holmes said. 

“What I’m trying to argue in the Confederate monument case is that this is a similar situation in which the government participates in speech that is discriminatory,” he said. 

To justify necessity in this case, Holmes had to prove to the court that the statue’s presence constituted discriminatory harm to affected students — a high threshold.  

“The courts have held under equal protection that you have to show some discriminatory harm being done to the person, beyond just expressive harm or stigmatic harm,” he said. 

Holmes said he hopes the Equal Protection Clause can eventually be litigated like the Establishment Clause, which places tight restrictions on the government’s ability to support specific religions. In cases of religious discrimination, government support of religious speech is enough to constitute a violation, but in cases of discriminatory harm as a result of racist speech, lines are more undefined. 

Not convinced the University's endorsement of the statue was harmful enough to justify Little’s actions, Cabe found her guilty. However, she withheld on issuing her a judgement and a penalty. 

“She could have entered judgement and waived court costs,” Holmes said. “She could have entered a judgement against Maya and not given any penalty.” 

Since the judge withheld on everything except the verdict, the case is unappealable. Holmes likened the outcome to a tie in soccer. 

After Cabe heard closing arguments, she called a 10 minute recess that lasted 45 minutes instead. 

“I walked back in here not even knowing what I was going to do in this case,” she said upon returning. “It makes the application of a statue that appears black and white very grey.” 

She said she couldn't find that Little’s crimes met the definition of necessity because of the requirement that civil disobedience must immediately protect the public to be justified. 

“It is a difficult thing to ask the court to justify what would technically be an act of vandalism, but I’m the not the first one who’s done it,” Holmes said. 

Little will next face UNC Honor Court charges on Oct. 25-26. 

Payne Lubbers contributed to reporting.

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