The Right to Defy Criminal Demands

Abstract

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn’t go along—and if Craig makes good on the threats, third-party bystanders might suffer. Should the legal system require Danielle to comply with the demands, on pain of civil liability or even of criminal punishment? Or should Danielle be allowed to defy Craig’s demands, even if this means a higher risk to bystanders?

These questions can arise in many different situations: negligence law, nuisance law, the heckler’s veto, disturbing the peace law more generally, the duty to retreat, the duty to comply with negative demands, and more. And they can arise with regard to many different criminal demands, whether political (e.g., terrorist threats aimed at abortion clinics, bookstores, and the like) or personal. This Article surveys all these areas, and suggests that, generally speaking, the law should protect defiance of criminal demands against legal liability, even when such defiance can increase the risk that the criminal will harm third parties.

Keywords: Criminal Law, Torts, First Amendment, Free Speech, Abortion, Self-Defense