By Bernard E. Harcourt

The night of October 16, 2011, twelve University of Chicago graduate students were arrested at an Occupy Chicago protest in Grant Park, downtown Chicago. Handcuffed and manhandled, they were transported in police vans to stations in all four corners of the city and held overnight, some for more than 17 hours. Their crime: violating the park curfew—the same park that we all had reveled in, all night long, the evening Barack Obama won the presidency. The curfew was being used selectively by then-mayor Rahm Emanuel to silence Occupy Chicago. It turns out, the G8 and NATO meetings were about to take place in Chicago, and Rahm needed to show the world he could maintain order. The crack-down was what we referred to, at the time in The Guardian, as Rahm’s “dry run” for the upcoming world gatherings in Chicago.

Tom Durkin, the leading criminal defense attorney in Chicago, took their cases, and together we turned the litigation into movement work. We consolidated the cases of our 12 UChicago students; the National Lawyers Guild then consolidated their 90+ cases with ours, and pretty soon we had over 100 defendants in the same courtroom mobilizing for equality and free speech rights. There had never been so many defendants and supporters in a Cook County courtroom. We occupied the courthouse. The story is recounted well here.

We were able to turn the legal defense into an occupation of the court. As the Chicagoist detailed, in an article titled Occupy Chicago Occupies the Court, “the individual court cases were consolidated into what lawyers representing Occupy Chicago said was one of the largest [occupations] in recent memory.” That was a powerful act of using the litigation to reinvigorate a social movement, especially after the long and demoralizing arrests and overnight jail stays.

We were able to convert the energy of prosecution into movement work. We were able to transform the defensive work of lawyering into offensive or striker litigation. At the same time, we were protecting the rights of the accused protesters. Ultimately, we were able to convince the court, at that court occupation, to throw out the charges against our students. And we gave the students a platform to broadcast their protest.

The Role of the Lawyer in Progressive Politics

In addition to lawyers participating in mobilizing and organizing, there will always be a need for lawyers to do “defensive” work—representing the accused, litigating for permits, protecting protesters. The key is to make it not just defensive, but offensive or “striker” work as well: to turn it into a force for social change. That is always a delicate and tricky task because of the fiduciary duties that a lawyer owes to their client. It’s like a doctor and the Hippocratic oath: you can’t harm your client’s interests, you always need to place their interests first, above the overarching social interests. So it is delicate. But it can—and I would argue must—be the focus of progressive lawyering. And it can be done.

Let me give another illustration, this one involving the defense of Doyle Lee Hamm, who was sentenced to death in Alabama. Following his botched execution, we were able to turn the double jeopardy litigation into abolitionist work and highlight the horrors of lethal injection. Our task was not only to make sure that Doyle did not get executed again. It was to take down the whole system of lethal injection.

We were successful, because the state of Alabama ultimately agreed not to seek another execution of Doyle Hamm so long as we would never talk about the botched execution again—in exchange for a gag order essentially. We settled and shut up—but all the evidence, all the medical reports detailing the torture, the photographs of the torture, etc., were all made part of the public record for others to use in the other death penalty cases of men and women in Alabama. That work has led to a moratorium on lethal injections in Alabama.

The implications continue to the present. All the evidence from Doyle’s case continues to be used in ongoing lethal injection litigation, and still today infuses the public debate. So, for instance, and I am not sure why this is occurring right now, but just last week the British tabloids have been writing about Doyle’s case, broadcasting all the lurid photos of his torture—and of the barbarity of lethal injection. An article just appeared in The Mirror by Vassia Barba on February 15, 2023. There was also a piece in The Daily Star by Ethan Blackshaw on February 16, 2023. The language of the pieces is pure tabloid, but they nevertheless infuse the public consciousness with the true horror of capital punishment. Just today, this article appeared in Newsweek—România.

But for the offensive litigation, there would not have been any way of getting this information into the public consciousness.

The courts are a powerful way to obtain and disseminate information—even when they are not on your side. It is not an accident that most of our archives and records from the past are courtroom or juridical proceedings. The court scribes are the ones who kept the best records throughout history. The court clerks have always been the most fastidious memorializers.

We see this today throughout the legal field—whether it is intentionally radical, progressive, or even purely commercial litigation. So, for instance, the lawyers for Dominion Voter Systems (the folks who make the voting machines) sued Fox News for defamation, on the theory that Fox knowingly broadcast lies about the Dominion machines that financially harmed the company. Thanks to that litigation—and that litigation alone—we now have a treasure trove of emails and texts by Tucker Carlson, Sean Hannity, Laura Ingraham, and others, that documents their utter hypocrisy and fraud. Based on that discovery, the New York Times just reported the following exchange of texts between Fox newscasters, all obtained by Dominion in discovery:

TUCKER CARLSON: “Sidney Powell is lying by the way. I caught her. It’s insane.”

LAURA INGRAHAM: “Sidney is a complete nut. No one will work with her. Ditto with Rudy.”

TUCKER CARLSON: “Our viewers are good people and they believe it.”

Here is another gem that was revealed in the litigation discovery:

On Nov. 12, in a text chain with Ms. Ingraham and Mr. Hannity, Mr. Carlson pointed to a tweet in which a Fox reporter, Jacqui Heinrich, fact-checked a tweet from Mr. Trump referring to Fox broadcasts and said there was no evidence of voter fraud from Dominion.

“Please get her fired,” Mr. Carlson said. He added: “It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ms. Heinrich had deleted her tweet by the next morning.

These are the kinds of revelations that can be obtained in litigation that would be hard to find otherwise (legally that is) and broadcast.

The art of rebellious lawyering in the courts is to turn the shield of defensive law into the sword of movement work.