The fuzzy line between dissent and disruption, even for courts

Anyone doubting the power of protest should study the shutdown of the Minneapolis Board of Education meeting on Jan. 12. The board was poised to appoint a new superintendent when demonstrators planted themselves in front of the dais, shouting, clapping and chanting their opposition until the board gave up and adjourned.

Days later, the would-be superintendent withdrew his name from contention.

If board members had instead clapped the demonstrators in handcuffs, they probably would have had the law on their side. On Jan. 25, the Minnesota Court of Appeals upheld the disorderly conduct conviction of a woman who refused to move her chair farther away from the dais during a June 2013 meeting of the Little Falls City Council.

On the scale of disruption, Robin Hensel's seating shenanigan in Little Falls looks tame next to the takeover in Minneapolis. Yet the Court of Appeals did not accept her argument that she was exercising her First Amendment rights at a public meeting.

Instead, the court invoked a provision in the state's disorderly conduct statute that penalizes conduct that "disturbs an assembly or meeting. …"

Those disturbances "certainly could take the form of speaking out of turn, heckling, shouting, chanting, and other forms of oral protest," Appeals Court Judge Michelle Larkin wrote in the opinion. "Disturbances could also take the form of expressive conduct like Hensel's refusal to move her chair in this case."

It's no picnic to be a public official these days, with trust in institutions and leaders at a nadir. School board members, mayors and others in public office have to endure name-calling, outbursts and threats. They do have a right, and a responsibility, to maintain control of their meetings.

Still, there's a fuzzy line between dissent and disruption, and even the courts can't decide where that is.

Take the case of Todd ­Sharkey, who was dragged from a public meeting. Sharkey's plan to develop a plot of land encountered resistance from the Shoreview City Council. The conflict culminated in a confrontation at a council meeting in May 2010.

At the podium, Sharkey kept interrupting the mayor. The mayor then told deputies: "Would you take Mr. Sharkey out, please?"

Sharkey refused to go, yelling three times that they would have to arrest him, according to the Court of Appeals opinion. Then he "clung to the podium and refused to leave until deputies pried his fingers off the podium and escorted him from the meeting," the judges wrote.

He was convicted of two counts of disorderly conduct and ordered to stay away from the council. In June 2012, the Court of Appeals threw out the convictions, ruling that Sharkey's sustained effort to speak his mind during a public comment period was his right.

"I was using facts, and I was burying the council," Sharkey said in an interview. "They didn't like it. When a council like that puts themselves out on a limb, you'd better have tough skin."

Robin Hensel's attorney brought up the Sharkey decision when appealing. Before the disorderly conduct charge, Hensel had a history of tussles with the city over her colorful signs proclaiming her antiwar and anti-corporate views.

In 2012, she sued the city for suppressing her signs and stopping her from buying advertising space on a bench right outside Little Falls City Hall. On June 3, 2013, she came to the council chambers with a sign on her head. It said, on the front, "Free speech restricted here."

At the next meeting, four days later, she left that headgear at home, but positioned her chair directly in front of the council dais to make a point. A negotiation with council members followed, and she moved her chair back, but not all the way.

At least one council member said they should just move on with the meeting, according to YouTube videos from that day. But the police chief and another officer warned Hensel that she faced arrest if she kept her seat where it was. She refused to move any farther, but when they moved to lift her up, she rose and walked with them out of the room.

A jury convicted Hensel of disorderly conduct, and she received a stayed sentence of 15 days in jail and a year of probation. In her appeal, she argued that the disorderly conduct law violated the Constitution.

The Court of Appeals rejected that argument. It did not mention why Hensel's chair challenge was different from Sharkey's firm stand at the podium. Perhaps the Minnesota Supreme Court will sort this all out.

If it does, I hope it recognizes that even in Minnesota, decorum has to take a back seat to democracy.

Contact James Eli Shiffer at james.shiffer@startribune.com or 612-673-4116.