State v. Barber, ___ N.C. App. ___, 2021-NCCOA-695 (Dec. 21, 2021)

In this case arising from a high-profile incident where William Joseph Barber was convicted of second-degree trespass for refusing to leave the office area of the General Assembly while leading a protest related to health care policy after being told to leave by security personnel for violating a building rule prohibiting causing disturbances, the Court of Appeals found that the superior court had subject matter jurisdiction to conduct the trial and that the trial was free from error.  

The Court of Appeals rejected the defendant’s argument that the superior court lacked jurisdiction to try him for the misdemeanor because the charging document upon which the State proceeded in superior court was a statement of charges rather than an indictment and Defendant had not first been tried in district court.  Here, the defendant was indicted by a grand jury following a presentment but the prosecutor served a misdemeanor statement of charges on him on the eve of trial and proceeded on that charging document in superior court.  The Court of Appeals noted that the superior court does not have original jurisdiction to try a misdemeanor charged in a statement of charges but went on to explain that because the prosecution in this case was initiated by an indictment, the superior court had subject matter jurisdiction over the misdemeanor.  The Court characterized the statement of charges as a permissible amendment to the indictment (because it did not substantially change the nature of the charged offense) rather than a new charging document.

The Court also rejected the defendant’s argument that the trial court erred by disallowing certain evidence that went to his assertion that his prosecution implicated his First Amendment rights to free speech and free assembly.  The Court determined that his First Amendment rights were not implicated in the conduct for which he was charged because he was removed from the General Assembly because of the loudness of his speech rather than its content.  The Court then determined that even if his First Amendment rights were implicated, they were not violated as a matter of law.  The Court held that the interior of the General Assembly “is not an unlimited public forum” and therefore “the government may prohibit loud, boisterous conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.”  It went on to conclude that “Defendant’s First Amendment rights were not violated by the application of the legislative rules that support his conviction” because those “rules serve a significant interest of limiting loud disruptions and [he] has various other channels to make his concerns known and to engage in protests of legislative policies.”

Judge Inman concurred in part and concurred in the result in part by a separate opinion.  Judge Inman applied United State v. O’Brien, 391 U.S. 367 (1968) to determine that the building rule at issue was more than an incidental burden on speech and instead was a time, place, and manner restriction subject to intermediate First Amendment scrutiny.  Judge Inman also concluded, in contrast to her reading of the view in the majority opinion, that the hallway where the defendant was arrested was a designated public forum.  Nevertheless, Judge Inman concurred in the ultimate conclusion that the defendant’s constitutional rights were not violated as the building rule was a reasonable time, place, and manner restriction that survived intermediate scrutiny.