Problems of Punitive Damages for Political Protest and Civil Disobedience

By Axelsen, Kaarin L. | Environmental Law, Spring 1995 | Go to article overview

Problems of Punitive Damages for Political Protest and Civil Disobedience


Axelsen, Kaarin L., Environmental Law


"The rights protected by the First Amendment are of profound importance to our society. Free speech is a transcendent value in that other values and rights are subordinated. In effecting the primacy of the First Amendment [there is al preference for errors made in favor of free speech."(1)

I. Introduction II. Summary of the Case Ill. United States Constitution First Amendment Analysis IV. Oregon Constitutional Analysis V. The Problem of Punitive damages and Expressive Conduct

A. Punitive Damages and Juror Discretion

B. Problems with Punitive Damages for Civil Disobedience VI. A Solution to Punitive Damages and Civil Disobedience

I. Introduction

The Oregon Supreme Court recently upheld a punitive damage award for trespass stemming from an environmental protest.(2) Although the law currently permits punitive damages for trespass, this Note argues that an instruction that allows the jury to consider motives and beliefs in assessing punitive damages for civil disobedience violates both the United States and Oregon Constitutions. This Note further argues that, as a matter of policy, courts should not allow punitive damages in cases of civil disobedience.

The freedoms guaranteed by the First Amendment of the United States Constitution(3) are vital to our society(4) and of paramount importance. Courts often protect freedom of expression(5) over other interests,(6) and the right to dissent and protest is inherent in the First Amendment's guarantees.(7)

However, the right to protest is not absolute.(8) When "mixed conduct"(9) infringes upon other important individual rights or state interests, the government may restrict the means used to express ideas, although it may not restrict ideas themselves. Thus, protesters who trespass on private or restricted property are liable for the conduct that constitutes trespass even though the protestor combined the trespass with expression.(10)

Nonetheless, those committed to an unpopular or little-known message may use trespass or other minor violations of the law to draw attention to their message.(11) Several well-known movements have successfully used this type of activity,(12) which is better known as "civil disobedience."(13) Activists employ civil disobedience in the environmental context as well.(14) Although civil disobedience is not a protected means of expression under the First Amendment or the Oregon Constitution, it is inherently expressive conduct.(15)

The Oregon Supreme Court recently upheld a punitive damage award for trespass against a group of environmental protesters engaged in civil disobedience. This case, Huffman & Wright Logging Co. v. Wade(16) (Huffman & Wright), illustrates some of the problems of awarding punitive damages in this context, particularly in terms of jury instructions. This Note analyzes Huffman & Wright under the First Amendment and the Oregon Constitution. It argues that although criminal sanctions and compensatory civil damages are appropriate(17) when protesters engage in nonviolent civil disobedience or violate trespass or similar laws, the law must be sensitive to the potential impact of punitive damages on protected expression. A court must instruct the jury that it may not consider the content of defendant's expression or the motives and beliefs behind it in assessing punitive damages. Finally, because of the history of civil disobedience in United States politics and the difficulty of separating conduct from protected expression in this context, this Note questions the propriety of awarding punitive damages at all in civil disobedience cases.

Section II summarizes the Huffman & Wright decision. Sections III and IV analyze the decision under, respectively, the First Amendment and the Oregon Constitution. Section IV discusses some problems and dangers of punitive damages in the area of civil disobedience. Section V suggests that punitive damages should not be awarded in cases of civil disobedience. …

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