The Rising Costs of Dissent: Public Protest and Civil Liabilities

Abstract

This Article critically examines the civil liabilities and costs that apply to public protest organizers and participants. It focuses on various novel claims recently filed against protest organizers and petitioners. These include “negligent protest,” “conspiracy to protest,” “malicious petitioning,” and “riot boosting.” Further, a wide variety of more traditional costs, ranging from permit fees to punitive damages, also significantly affect public protest. These costs and liabilities add to an already challenging and burdensome public protest environment, which imposes legal, regulatory and other restrictions on protest activities. Owing to their chilling effect on speech, assembly and petition rights, courts have a special obligation to review both new theories and traditional costs skeptically, to demand 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 new theories of liability and all officials to consider more carefully the First Amendment implications of the cumulative – and rising – costs of dissent.