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In Defense of Protest
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Phil Worden, Esq.                                        
Interviewed April 6, 2006 in Portland, Maine.
Q:  What is your educational background?

A:  I grew up in Los Angeles. I went to the University of California at Santa Barbara in 1967, but barely made it out of the freshman class. I was very active in the anti-war movement at that time. I went to the University of Paris, the Sorbonne, in the spring of 1968 when there was a major uprising.

I moved to Maine in 1972 with a bunch of people from Santa Barbara and we tried collective farming in Piscataquis County. We broke up in 1974 or 1975. I went back to school to complete my undergraduate education and then went to the Boston University School of Law and graduated in 1980.

Q:  Why did you go to law school?

A:  I was introduced to the law when I was in the anti-war movement. I was arrested several times and had four sets of convictions. I once represented myself pro se and spent forty-five days in the county jail. All that interested me in the law.

Q:  Do you want to talk more about the anti-war days?

A:  The feeling is coming back: the big chill. Stuff is happening now that I did not think would happen again and that is unfortunate.

Q:  What did you do after you graduated from law school?

A:  I came back to Maine out of law school in 1980 and practiced one year with a firm in Guilford to learn how the practice of law actually works. I then practiced on my own out of my home.

Q:  You practice out of Northeast Harbor now?

A:  Yes.

Q:  When you began on your own did you concentrate in any particular area of the law?

A:  I did criminal defense. I represented parents in child protection cases. And I did a little bit of civil stuff.

My first serious case was Martin v. Scott Paper Company. At the time the paper companies were taking the position that woods workers were independent contractors and therefore the paper companies did not have to provide workers compensation, minimum wage and that kind of stuff. My client was injured in the woods. Scott Paper Company had required the jobbers to produce a certificate that they had their own workers compensation insurance. My client’s jobber’s insurance had actually lapsed, but the insurance agent, as a favor, had issued a phony certificate. He had no workers compensation. It seemed time to argue that Martin was in fact an employee of Scott Paper. He had to cut on Scott Paper land and had to sell to Scott Paper at Scott Paper prices. Scott Paper could tell him when to cut and where to cut; so, we filed a suit against Scott Paper.

Q:  What was the outcome?

A:  It got complicated. Superior Court dismissed my case. It went to the Law Court. The Law Court reinstated it and it went back down to Superior Court. Scott Paper forgot to answer, they defaulted, and we settled.

Q:  What other accomplishments have you had since that time?

A:  What I have enjoyed the most was co-founding the Mabel Wadsworth Women’s Health Center in Bangor in the early 1980’s. I have been its attorney ever since. The Center provides medical health services for all women and cost is based on a sliding scale. The Center is only one of seven or eight independent women’s health centers in the country. It is totally independent and not affiliated with anyone. It provides medical services, community advocacy, and community education.

Q:  Does the Center deal with reproductive rights?

A:  Yes. The Center’s physicians perform abortions. The Center was attacked by the anti-abortion forces in the mid 1990’s. We formed a group called CUReS, which stands for Communities United for Reproductive Safety, and tried to organize the community against the anti-abortion protesters. The Center’s windows were broken. The director was threatened. Very graphic stuff and quite scary. We could put up with the picketers outside the center. We became immune to that. But the targeting of our individual doctors in the privacy of their homes was very rough, especially for the ones who had children. The protesters, for example, would thrust graphic pictures in front of the children and ask them why their mommy was murdering babies. 

It was interesting for me because it was a complete reversal. I had always been on the side of the picketers and the protestors. I think the CUReS program was very successful in uniting the community and isolating that group. They still exist but they dropped the targeting of people in their own homes.

Q:  Where do you think we are going with reproductive rights now that we have two new US Supreme Court justices?

A: It is very scary. Ever since Roe v. Wade there has been a concerted effort to get that case reversed. I thought it was going to happen in the 1980’s when Regan was first in office.

The gag rule came down from the Regan administration not allowing a health professional to talk about abortion as a method of family planning. At first I considered that absurd because I thought in no way would a person consider abortion as a form of family planning. One would terminate a pregnancy when the family planning had either failed or did not exist.  It became clear that the Regan administration really did not want patients receiving information about abortion at all. Even if there were already a pregnancy, a health professional could not discuss abortion as an option for terminating the pregnancy. There were ethical issues for doctors about keeping a patient in the dark. That was when we formed the Mabel Wadsworth Women’s Health Center as a feminist health center that would not accept federal funding.

Planned Parenthood v. Casey came along in the 1990’s and did not reverse Roe. It then looked like the strategy would be to chip away at Roe: erode it over time rather than to totally flip it. That may now change with Roberts and Alito on the court. The anti-abortion people see Roe v. Wade being like the Dred Scott decision, a case to be reversed. Everyone is watching.

If Roe v. Wade does get flipped, the impact on Maine may not be that great. The South would fairly likely outlaw abortion. And maybe some significant states, like Ohio and Pennsylvania. New York and California . . . probably not.

Q:  How does Maine rate in comparison with the other states?

A:  We do not really know because Roe pre-empted the field. When Roe v. Wade first came down, the Maine legislature did not remove its unconstitutional law. Planned Parenthood or someone went into federal court and received a federal court ruling saying the Maine abortion statute was unconstitutional under Roe v. Wade. The statute was still there. The legislature refused to repeal it, which was not a good sign; but there was a federal ruling. Then when the Casey decision came down, the women’s rights movement realized that an important anti-abortion strategy was to chip away at Roe. The abortion laws were consolidated and codified, and abortion became legal by statute.

Q:  You have represented Let Cuba Live. What is it?

A:  Let Cuba Live is a group that exists in Maine. They do solidarity work with Cuba. Specifically what they often do is to gather up medical supplies, deliberately not get a license, run the blockade, and bring the supplies down to Cuba. Sometimes they bring goods back from Cuba. They have been doing that for a large number of years. How I got involved was that they were doing a passage up through Canada, where their goods were seized by US Customs at the border. I represented the group to petition the government to get the goods back, which were then sent on to Cuba in the next caravan. I met them through the Maine Global Action Network.

Q:  What was the Maine Global Action Network?

A:  That was a group that coordinated the anti-globalization people going up to Quebec for the Summit of Americas a while back. I did the legal work coordinating people up in Jackman and helping people get through the border. A lot of people involved in that were involved in Let Cuba Live. There was a lot of fear.

Q:  Fear of what?

A:  At the time the Summit of Americas was meeting in Quebec. The Canadian government initiated security precautions. They erected a fence and were deciding at the border who they were going to allow into the country and who they were not. The Canadians were most afraid of what they called the “black block,” anarchists coming up from New York and Massachusetts. The Maine state police were worried that if a large group of anarchists was stopped in Jackman and not allowed into Canada by the Canadians, an explosive situation could occur in Jackman. The Maine Global Action Network met with the Canadian officials and then gave advice to people who wanted to cross into Canada as to what to say at the border in order to get in.

Q:  You represented Iraq anti-war protestors recently, which comes almost full circle for you.

A:  It does. It brings back old memories. There was a sit-in at the Bangor federal building when the war opened. Thirteen people had an appointment to meet with Senator Collins’ office. When they arrived, with the new security having gone from yellow up to orange, the security personnel in the lobby took the position that “peace and justice” people could not come into the building in groups larger than three. We took the issue to court as an explicit political test and had a jury trial. The security guard testified that the limit to three in a group only applied to “peace and justice” people. He said that security would have let in more than three people from a labor group; and a large group of Kindergarteners would have been o.k. It seemed that a profound First Amendment issue existed.

At the start of the war there was also a sit-in at Senator Snowe’s office. Some people chained themselves to her desks. That did not have as many interesting legal issues to it.

There was a more recent incident involving eighteen people arrested outside Senator Snowe’s office last December. The most particular demand was to get Senator Collins and Senator Snowe to hold a town meeting on the war so the protesters could air views on the legality of the war, the basis for going into the war, and the intelligence used. To flush it all out. Both senators refused. They said they would meet people on an individual basis but not in a town hall forum.

Recently protesters demonstrated when Susan Collins spoke at the University of Maine. I coordinated the legal work for that.

Q:  What do you do specifically?

A:  I give them advice before the arrest to tell them what the process is like, what they can expect, and what the charges are likely to be, to make sure they have their eyes open and know what they are getting into. One of the worst things I saw happen in the 1960’s was that people would get themselves into situations that they regretted because they did not realize what would happen. And they came out very burned out. I advise people so that they know the risks and know it is o.k. not to get arrested if they do not want to. I tell them they can demonstrate and then when the police give the order to leave, they can leave and not be arrested. That’s not cowardice. And those who want to stay know they will be arrested. Once they are arrested, it is a matter of coordinating their criminal defense.

It is a very unique form of criminal defense. First of all, there is no denial that the protester did it. Demonstrators always want to raise the international law defense…the illegality of the war, which is not really a defense to criminal trespass. An essential element of criminal trespass, however, is that you must subjectively know you are not licensed or privileged to be there. That is the difference between criminal trespass and civil trespass. So, if you believe the war is illegal and you have a right to challenge the war, that supplies the defense for you because you subjectively believe you have a right to do what you are doing. A mistake of law can be used to raise a reasonable doubt on an essential element of the crime. If someone mistakenly believes they can litigate the legality of the war by criminal trespass, we can get a jury instruction on it.  This opens the door for the defense to raise the illegality of the war.  It is for the jury to decide if the defendant really believed they are legally right as opposed to just morally right. So far the juries haven’t bought it.

That is not to suggest we always go to trial. We do not. Most of the time we plea bargain. Most of the demonstrators take the position that they will not pay a fine because they consider that the money will go to the war efforts. They see it as a moral principle. Most judges in civil disobedience cases do not want the defendants thrown in jail unless they are repeat offenders. It gets to be problematic. What should happen? In most criminal sentencing the criminal is saying, “I am so sorry. I have learned my lesson. I will not do this again.” In civil disobedience cases it is just the opposite. Defendants are not going to get up and apologize and say they will not do it again. So, we usually try to work out some kind of community service. So far that has been pretty successful.

Q:  How big is the anti-war community?

A:  It’s pretty active. A fairly small number of people are 100% totally into it. There is a much larger base of people that will show up at demonstrations with posters. And then there is an even broader base that opposes the war but is not active. Those people are sympathetic. At the beginning of the war people would show up and argue with them. That has totally disappeared now. The popular mood is changing, as it did with Vietnam. But not fast enough.

Q:  Have you ever worked in the public sector?

A.  For a while I switched sides and worked for the Bangor district attorney’s office doing appellate work. There was a five-year period I was doing Law Court arguments in criminal cases, which I thought was a great deal of fun. It pointed out something I knew but did not realize the importance of: it is the merits of the case and not the quality of the lawyering that determines the outcome.  Good lawyers should  – and do  –   lose bad cases; bad lawyers should  – and do  – win good cases.  A poor brief can win a case because the Law Court is more interested in the merits of the case than the quality of the lawyering. Think of how corrupt the legal process would be if judges did not look through the lawyering: good lawyers always would win cases and bad lawyers always would lose cases. That was my great lesson. One could then argue, “Why do a good job if a good judge can see through a bad or a good attorney?” The answer is professional pride. You can make things easier for the judge by doing a good job.

I stopped working for the Bangor district attorney’s office in 1990 when I moved to Mount Desert Island. There were some things on the prosecution side that were uncomfortable for me. Roadblock cases and civil liberties cases made me feel uncomfortable. Two or three of the roadblock cases were my cases. But on the whole, it was a great experience.

Q:  What other legal work have you done?

A:  I taught administrative law at the University of Maine for a while. I thoroughly enjoyed that. There is just something about studying bureaucracy and how it works that fascinates me.

I have done some work on the LNG controversy. The Town of Perry had a right to vote on the issue and the developer promised the Town that it would give it a million dollars a year if Perry allowed LNG in there. The money could be used for whatever the town wanted. I looked at that and said, “Why isn’t that bribery?” The developer was offering money to people to influence an election. I wrote a letter to the Washington County district attorney’s office, that was released publicly, laying out what the bribery statute was and documenting what the developer was doing. The district attorney ultimately determined it to be an “impact fee,” which was difficult for me to understand because there is a statute for impact fees for development and that statute requires impact fees to be held in trust and to be used only for a particular impact, such as sewer systems. Anything left over has to be refunded to the developer. But that was the ruling of the district attorney and I respect it.

Q:  Any other interests?

A:  Part of developing the anti-war work has been to try to revitalize the Maine chapter of the National Lawyers Guild. We are a network of lawyers who coordinate civil disobedience cases. There has not been an active chapter in Maine for a while and we are trying to get it going.

Q:  Do you represent clients that do not represent your beliefs?

A: It depends. There are times when I represent people I do not necessarily agree with. There are certain kinds of areas where I feel uncomfortable. I really do not want to represent child sexual molesters anymore. As a general rule, I try to avoid representing big developers or sub-dividers. I am very much aware of being an advocate for the client’s interests, which are not necessarily my own personal views. I believe that if you get too attached to a case, you are not going to be a good advocate because you become too personally involved. That is a real danger for people who have strong views, as I do.


Phil Worden speaking against the USA PATRIOT Act in Belfast, Maine.
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