The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Have You Ever Considered That Your Presence Poses a Risk to Other Participants and the Public?"
A question a Polish journalist asked an Israeli contestant (Eden Golan) in the Eurovision Song Contest.
In responding to criticism of the question, the journalist says that he's not anti-Israel (see here), and I have no reason to doubt that. He also notes, "everyone struggles with some thoughts on this matter":
Eden Golan brings risk and danger to Malmo as a singer of her beautiful country - even if it is a broadcasting competition. Crazy supporters of Hamas can take advantage of the situation and the interest in the [Eurovision Song Contest] for various activities. This was the question and nothing else
Here's my thinking: Of course someone has to consider the risk posed by the presence of people who are potential targets for attack—whether prominent Israelis, or Salman Rushdie, targets of crazed nonpolitical stalkers, or anyone else. It's the job of security people to consider those very risks, in deciding how to effectively protect the event (and I hope not in deciding to exclude the potential victim). And of course other people may indeed struggle with their own thoughts on this matter. Worry about risk of violence is a natural human reaction.
But the implication of the journalist's question wasn't, I think, just "Did the risk cross your mind?" Rather, the implication was, "Shouldn't you feel obligated to stay away because of the risk that people might attack you and in the process injure bystanders?," with the answer to that implied question being "Yes."
And that, it seems to me, isn't right. A proper response to such threats of violence generally has to be to defy them, and not to allow them to control our lives, as a matter of law or as a matter of morals. On balance, a norm that requires people to give in to such threats, and to stay away from events because of the risk to bystanders, will cause more long-term harm than a norm that people have the right to ignore such bystander risk. (Just to be clear, if the target of the threat doesn't want to defy it, I don't want to add to her problems by insisting that she defy it—my point is simply that such defiance is a proper response, and not one that should be faulted.)
Here's an analogy from the legal world (and of course I realize that the journalist's question had to do with moral obligations, not legal ones). The case is Governors Ridge Office Park Association v. McBrayer (Ga. Ct. App. 2021), where neighbors sued an abortion clinic owner for nuisance, partly on the grounds that
[McBrayer] knowingly brought with [him] a substantial risk of physical harm and property damage to [neighbors], [and] instilled a fear that a clinic of Dr. McBrayer might be bombed again, and their physical safety, lives and buildings might be threatened by activities such as the arson fire-bombing in May 2012 of the clinic in the Park operated by [McBrayer].
A jury awarded neighbors $1.5 million. (For an overseas zoning law analog, consider the Australian court decision upholding a refusal to allow a building permit for a synagogue because it could be a terrorist target, given "[t]he threat situation with respect to Jewish communities around the world and Australia.") And the anti-abortion activist group Operation Rescue hailed this as a means for fighting abortion clinics more generally:
This case is important because it gives other office park associations a template to follow when abortion businesses move in and cause disruptions…. We urge office parks where abortion businesses are located to sue for nuisance they cause.
They (the abortion clinics) cause the nuisance, Operation Rescue was arguing—not the protesters (such as Operation Rescue members) who come to protest, or the arsonists who try to or threaten to burn down the clinic and thus endanger its neighbors. And while the Operation Rescue statement of course didn't urge violent attacks or threats, the logic of the decision created an incentive for such attacks or threats—after all, the office parks' suit for the "nuisance [the clinics] cause" relies in large part on the presence of such criminal conduct on the part of the anti-abortion movement's violent fringe.
But the Georgia Court of Appeals reversed the verdict, relying in part on something like a right to defy:
If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere. As [amici curiae] correctly point out, such a holding could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence.
Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise.
For more, see The Right to Defy Criminal Demands, which also links this to many other legal examples. (Note that I filed a friend-of-the-court brief in the McBrayer case.) Thanks to Prof. Ellen Bublick for the pointer to the journalist's question story.
UPDATE: My original post overstated things slightly in the "proper response" paragraph. I've tinkered with it slightly and added the parenthetical to make clear that I don't demand defiance from the potential target of the attack (who has problems enough without my adding to them with such demands)—I only demand that we accept such defiance if that is the potential target's choice.
