The Rising Costs of Dissent: Public Protest and Civil Liabilities
51 Pages Posted: 16 Jan 2020
Date Written: December 29, 2019
This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.
Keywords: protest, civil liability, tort, petition, dissent, cost, liability, speech, assembly
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