“I’m going to comply, sir,” Brittany “Bree” Newsome told one of the three assembled police officers on June 27 as she lowered herself from a pole on the South Carolina State House grounds in her climbing gear and helmet, carefully clutching the Confederate flag. “I’m prepared to be arrested.”
The North Carolina activist, who is black, and fellow activist James Ian Tyson, who is white, were led away and charged with defacing a monument, a state law passed in 2000 as part of the legislative compromise that moved the flag from off the State House dome and onto its front lawn, right next to a monument to Confederate soldiers.
But will the charge hold up in court?
“A question that comes to my mind is whether this monument was actually defaced at all,” says Drew Radeker, a Columbia attorney who sued Gov. Nikki Haley on behalf of the Occupy Columbia movement. Radeker isn’t involved in Newsome’s case, though he says, “It certainly didn’t upset me that she took the flag down.”
The state law in question reads: “It is unlawful for a person to wilfully and maliciously deface, vandalize, damage, or destroy or attempt to deface, vandalize, damage, or destroy any monument, flag, flag support, memorial, fence, or structure located on the capitol grounds.”
Newsome didn’t damage or vandalize the flag, Radeker points out; she simply took it down.
Meanwhile, attorney Mark Schnee, who’s representing Tyson, argues that the two activists didn’t maliciously remove the flag, as the law specifies.
“I don’t think anything they’ve done shows malice of any kind,” Schnee says. “On the contrary, she climbed the pole — that flag is secured with a chain and not a rope, and her particular purpose in climbing the pole was so they didn’t cut the chain or damage it or do anything else.”
The law has been successfully applied in court at least once before, in 2002, after a man named Emmett Rufus Eddy Jr., who often called himself “Rev. E. Slave,” donned a black Santa Claus suit, laid a ladder against the pole, climbed to the top and set the flag on fire.
Eddy pleaded guilty to defacing a monument and was barred from entering the State House grounds, a conviction upheld by the state Court of Appeals in 2003. His two-year prison sentenced was suspended to two years’ probation. Eddy died in 2005.
These legal questions could be moot, as the case is in the hands of Fifth Circuit Solicitor Dan Johnson — and on at least one other occasion, Johnson has declined to prosecute a case involving protest on the grounds of the State House.
In 2011, after Gov. Nikki Haley ordered the arrests of 19 Occupy Columbia members who’d been camping on the State House grounds to protest income inequality, Johnson dropped all charges. The Occupy movement then sued Haley, alleging she’d violated their First Amendment rights. The case was settled in 2014.
A video of Newsome removing the flag has now been viewed more than 1.8 million times on YouTube.
The flag was replaced soon after Newsome took it down.
Her act has drawn mixed reactions.
The national NAACP heralded “the courage and moral impulse of Ms. Newsome as she stands for justice like many activists including Dr. Martin Luther King Jr., Henry David Thoreau and numerous other Americans who have engaged in civil disobedience.”
But the South Carolina chapter of the NAACP released a statement calling the act “well intentioned” but misplaced.
“Impatience must always be tempered by purpose and prudence,” the SCNAACP’s statement read. “Given the actions of the South Carolina General Assembly in the last several days, we ask everyone who shares our impatience and our disapproval of the flag to be patient and permit the General Assembly the opportunity to take its vote in July to at last remove this hurtful symbol from the people’s State House.
“This is not yet the time for civil disobedience, but a time for grieving over the tragedy in Charleston and a reflection on symbols and the hatred they fuel.”
Brad Warthen, bowtie-wearing former editorial page editor of The State and this reporter’s barometer of mainstream white opinion in Columbia, called the episode “unfortunate.” Warthen, who wants the flag removed by the Legislature, wrote, “This kind of action does no good whatsoever, except for perhaps providing some sense of personal, self-congratulatory satisfaction to the individuals involved.”
Meanwhile, Brett Bursey, director of the South Carolina Progressive Network and himself a veteran of countless State House protests, also a flag opponent, had some words of caution.
“I can appreciate the need for people like Bree to take action,” Bursey says. “The question is, what are we going to do when the flag comes down and the problems still remain?”
Bursey then quoted the late Modjeska Simkins, a black South Carolina activist. While the flag still flew from the top of the State House, Bursey says Simkins used to say, “Leave the damn rag up there. I’d rather see the Klan in sheets than in suits. As long as that flag flies from the top of that building, you know what’s in the hearts of the people inside.”
Newsome and Tyson are due in court July 27.
