The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This article (which I serialized several months ago) is now out in the NYU Journal of Law & Liberty. The Introduction:
Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn't go along. And, as often happens, Craig's threatened crime would endanger not just Danielle but also innocent bystanders.
Should the legal system require Danielle to comply with the demand, on pain of civil liability or even of criminal punishment? Or should Danielle have, in effect, a right to defy Craig's demands, even if this means a higher risk to bystanders?
These questions arise in many contexts: threats to abortion clinics; attempts to impose a "heckler's veto" on unpopular speakers; threats by robbers or kidnappers; attacks by jealous exes; and more. And they arise with many legal rules that might punish such defiance, such as nuisance law, negligence law, and the criminal law of disturbing the peace and recklessness endangerment. A version of the problem also arises with the criminal law duty to retreat and its lesser-known cousin, the duty to comply with negative demands.
In this Article, I'll try to bridge these topics, discussing the various facets of the problem together; I hope that showing these connections (which to my knowledge, had not been drawn before) can more clearly illuminate the core principles underlying the right. My conclusion is that, on balance, it's good for courts and legislatures to generally recognize a "right to defy criminal demands": a right to refuse to comply with such demands, without being held civilly or criminally liable for the consequences of this defiance, and without losing other important rights (such as the right to lethal self-defense) because of such defiance. And I think the legal system does indeed usually recognize it, though not completely consistently, and without a recognition that the right transcends various legal doctrines. (This Article is thus within the longstanding genre of works that infer a legal principle from a set of legal decisions that support the principle, even when the decisions haven't consciously articulated the principle.)
The Article will chart the potential scope of this right, and the authority for and against it. I begin by explaining the many fact patterns, mostly based on real cases, in which the question arises (Part I). I then discuss how a possible right to defy criminals arises as to negligence (Part II), nuisance (Part III), criminal law generally (Part IV), and the duties to retreat and comply (Part V). In Part VI, I discuss possible limits on the right to defy: for instance, perhaps the defiant person's behavior may still be punishable if it's independently wrongful (e.g., fighting words); if it has the specific purpose of provoking violence; if forbidding that behavior imposes only a modest intrusion on liberty (one possible rationale for a limited duty to retreat); if the behavior is legal but constitutionally unprotected; or if her defiance is unreasonable. Or perhaps even if Danielle's behavior may not be legally punishable, it should still lead to a lesser penalty for the criminal who is provoked by such behavior.
Finally, Part VII will ask whether it's legitimate for the law to require expensive precautions against threats, short of requiring compliance with criminal demands—for instance, by requiring threatened people or institutions to hire armed guards, put up physical barriers, or warn visitors or neighbors of the threat. I think these precautions aren't as violative of the threat victims' dignity, because they don't enlist the state on the side of the criminal threatener. At the same time, courts and legislatures should be cautious about imposing such obligations, because they do let the threateners use the legal system to impose potentially massive costs on their victims. And, I'll argue, that is especially so when the duty is a duty to warn, which may intrude on the victims' privacy and lead people to shun them.
If you're interested, you can read the whole thing here.