The Right to Defy Criminal Demands: Possible Limits (Part I)

I've just finished up a rough draft of my The Right to Defy Criminal Demands article, and I thought I'd serialize it here, minus most of the footnotes (which you can see in the full PDF). I'd love to hear people's reactions and recommendations, since there's still plenty of time to edit it. You can also see previous posts (and any future posts, as they come up), here.

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I've shown so far, I think, that the law at least sometimes expressly or implicitly recognizes a right to defy. But not always, and not everywhere. Let me speculate on a few particular circumstances that might lead courts and legislatures to reject such a right (whether or not soundly).

[A.] Independent Wrongfulness

To begin with, some behavior is seen as sufficiently wrongful that we don't much mind its being suppressed by the threat (however illegal) of private violence. The "fighting words" doctrine is a classic example: Face-to-face personal insults that pose a serious risk of retaliatory violence can be punished as breach of the peace, precisely to avoid such violence. In a sense, then, the law requires the would-be insulter to comply with the implicit threat "don't call me that, or I'll punch you."

But this isn't treated as a forbidden "heckler's veto," because such face-to-face insults are viewed as comparatively valueless and not just potentially harmful:

[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

The fighting words doctrine, to be sure, has been criticized (though courts continue to uphold some fighting words convictions). Perhaps it should be jettisoned. But to the extent it exists, it shows how courts limit a right of defiance to exclude situations where the defiant act is seen as at least borderline improper even without regard to the risk of retaliatory violence.

[B.] Purpose to Provoke Violence

The law sometimes also condemns actions done with the specific purpose of triggering violent retaliation. The Model Penal Code, for instance, provides that deadly force can't be used for self-defense if "the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter." (On this point, the Code does represent a broadly recognized view among the states.) If Craig has demanded that his ex-girlfriend Danielle stop seeing her new lover, and she deliberately appears in front of Craig in the new lover's company specifically in order to cause Craig to attack her so that she can shoot him, that wouldn't be lawful self-defense.

If Danielle were just going about her business, resolved to ignore Craig's demands, and a threat from Craig foreseeably materialized, she wouldn't be barred from defending herself (at least in the 43 states that reject a duty to comply with negative demands). But the specific purpose to provoke turns this otherwise lawful defiance into a forbidden plan to bring about Craig's death.

There is some suggestion of this as well in the cases that generally reject the "heckler's veto." Those cases suggest that "intentionally provoking a given group to hostile reaction"—seemingly in the sense of speaking with the specific purpose of provoking violence—might be punishable, even though knowingly producing such a reaction is not.

I'm skeptical of purpose-based tests, especially when it comes to speech restrictions, for reasons I've laid out elsewhere. But it does appear that courts at least sometimes distinguish knowingly accepting a risk—even a near-certainty—of attack (which does not strip one of the right to resist or to defy) from purposefully bringing about the attack (which does strip one of such a right).

[C.] Magnitude of Intrusion on Liberty

The law sometimes creates a duty to comply with criminal demands when the demands are modest enough. This likely explains why some states recognize a duty to retreat, fewer recognize a duty to comply with negative demands, and only one recognizes a general duty to comply with positive demands—and that limited to minor demands.

Having to briefly leave a place (which isn't your home or, in some states, your work or your vehicle) is seen, rightly or wrongly, as a modest imposition. But having to affirmatively do other things that a criminal demands may be a much more serious burden.[1] And we see that explicitly set forth in the North Dakota duty to avoid rule, which bars the use of lethal self-defense only if "it can be avoided … by … conduct involving minimal interference with the freedom of the individual menaced."

Likewise, this may explain why, as we've just discussed, the purpose of provoking an attack might deprive people of their rights to self-defense even if the mere knowledge of a likely attack wouldn't. Restricting things that are done with the specific purpose of provoking violence is a minor restraint on liberty: Despite the restriction, Danielle would remain free to do all she would have normally done in the absence of Craig's threats; Craig's threats wouldn't deprive her of any of her legal rights; she would simply be required not to do something that she couldn't legitimately do in any event—orchestrate a plan aimed at killing Craig.

This also explains some of the criticisms of the Kentucky Fried Chicken holding, for instance in Justice Mosk's dissent:

[Under the majority's rule], a business proprietor is never required to subordinate any of his own property interests—no matter how insignificant the object and no matter how slightly it is jeopardized—to his customers' safety—no matter how many they are and no matter how gravely they are threatened. To expose such a conclusion is to prove its unsoundness.

Perhaps an establishment shouldn't have to surrender more valuable rights, for instance the right to carry on a controversial business (e.g., to perform abortions, to distribute blasphemous images, to sell furs, and the like) or the right not to pay a million-dollar ransom. But having to hand over a few hundred dollars to a robber, the theory goes, is no big deal.

As I've noted above, I'm inclined to doubt this approach: Having to obey even facially minor criminal demands is in my view a grave loss of liberty and dignity. The law ought not side with the criminal in enforcing such demands, even when defiance causes some risks to bystanders (or, in the duty to retreat, to the criminal). Nonetheless, to the extent some judges and legislators reject a right of defiance in some situations, they may be moved by the relative "insignifican[ce]" of what the crime victim is being forced to do.

[1] We can imagine some affirmative commands that would be comparatively small impositions (in the words of the Model Penal Code commentaries, "trivial and preferable to most people than resort to deadly force." But if the duty is to be applied in general (because "[t]o attempt to mediate between [the trivial impositions and the outrageous ones is] deemed impractical"), then one can conclude that a duty to comply with positive demands should be categorically rejected. Model Penal Code and Commentaries § 3.04(d), at 60 (1985).