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The case against billing protesters

Today's blog appeared originally in the Pioneer Press.

Respect for individual rights is the hallmark of a constitutional democracy such as the United States. Among the most sacred of those rights are the expressive ones found in the First Amendment guaranteeing freedom of speech, press, petition, and association. Free societies require free expression, including the ability of individuals to protest government action they find wrong. That is why legislation aimed at billing protesters for the costs of policing when they break the law in a nonviolent fashion is ethically and constitutionally wrong.

The price of a free society is permitting and respecting individuals’ rights to express their views through civil disobedience, including peaceful breaking of the law. America’s independence begins with an act of civil disobedience when colonists in 1773 dumped tea in Boston harbor to protest an unjust British tax. It includes abolitionists Henry David Thoreau who challenged slavery by refusing to pay taxes, civil rights advocates who sat at lunch counters and at the front of buses to contest Jim Crow laws, and pro-life individuals who blocked the entrances of abortion clinics to defend the rights of the unborn. Not all of us necessarily agree with their causes, but those who broke these laws were not common criminals. Common criminals are individuals who break the law for personal gain, with the intent to harm others, or simply for the sake of breaking the law. Protesters who break the law do so for different reasons and should be treated differently than common criminals.

Protesters break the law to demonstrate that a law is unjust, or that the government is acting wrongly or unconstitutionally. They break the law to appeal to the sense of morality or justice of the political community, demanding the government or others to recognize the injustice and correct it. The power of civil disobedience is the willingness of individuals to face punishment for a cause, testing both the content of their character and the courage of their convictions that they believe are moral and political wrongs. This is not mere hooliganism, it is a patriotic act of political action, aimed at invoking the deeply held constitutional values of American society, demanding that the current law or practices be changed.

Such activity is critical to the functioning of a free society as the United States. Such protest is consistent with and furthers the constitutional morality upon which this nation was founded.

That is why legislation aimed at billing individuals for the costs of their protests is wrong.

Across the country and in Minnesota elected officials are introducing bills that would do that, or enhancing penalties for breaking the law when protesting. Even if the laws were limited to billing individuals convicted of breaking the law, that is still wrong. In cases where the validity of the laws is doubtful one should never bill protesters for civil disobedience because such activity serves to chill expressive rights. It is an effort to squash the ability of individuals to act in ways to draw attention to unjust or unconstitutional activity and thereby prevent social and political change.

Even in cases where the law is clear and protesters have clearly broken the law, yes, in many cases they should be charged and convicted for breaking the law, but they should not be billed for policing or face enhanced penalties. These protesters are not criminals as defined above; they are challenging laws for ethical and constitutional purposes. Even in violating laws that are valid they perform an important function in exposing wrong. Imagine if abolitionists were billed for policing, or if Rosa Parks and Martin Luther King Jr. were assessed. American society is better for their actions, our constitutional system is stronger, our respect for individual rights more entrenched, and our respect for human dignity furthered.

These laws establish bad precedents. Why not bill for the cost of police protection for the 100,000 who marched in St Paul against Donald Trump or for the thousands who showed up for his airport rally last November? Assess a process fee for petitions submitted to the government? Bill the press for time government officials spend answering their questions? These acts are core to a free society and billing for them would damage First Amendment rights.

The price of a free society is respecting differences of opinion. It recognizes that dissent – including breaking the law – is often capable of being more ethical and just than blindly and passively obeying it. In some cases, breaking the law invokes and promotes a shared sense of ethics that underlies the legal regime of the United States. That is why it would be wrong to treat protesters as mere criminals and force them to pay for the exercise of their First Amendment rights.

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