The Costs of Dissent: Protest and Civil Liabilities

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including “negligent protest,” “aiding and abetting defamation,” “riot boosting,” “conspiracy to protest,” and “tortious petitioning.” The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add to an already challenging and burdensome protest environment, which includes regulatory and other restrictions on speech and assembly. Owing to their chilling effect on First Amendment rights, courts have a special obligation to review both traditional costs and new civil actions skeptically, to require clarity and precision in terms of liability standards, and to allow civil liability only in very narrow circumstances. Applying these guidelines, the Article urges courts to reject a number of civil costs and claims as inconsistent with First Amendment precedents and doctrines, and to review other costs and liabilities in light of the First Amendment values protest activity serves. Beyond the courts, officials and administrators should more carefully consider the First Amendment implications of the cumulative—and rising—costs of dissent.

“The rights of political association are fragile enough without adding the additional threat of destruction by lawsuit.”

“What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute.”