NPR reports today on a Michigan State student who protested a tar sands pipeline by using a bike lock to secure himself to a truck involved in the construction. At the end of the 90-minute protest, the student (ironically named Tarr) was arrested for trespassing, which he expected. But the company responsible for the project, Precision Pipeline, managed to make him pay more: according to the story, the company "use[d] Michigan's crime victim restitution laws to assess charges to make up for the value of equipment and workers idled during their protest" — a whopping $39,000, which amounts to more than Tarr's student debt and which is not dischargeable in bankruptcy.
This is part of a troubling trend of economic retaliation against protestors; the NPR piece also cites a Black Lives Matter protest threatened with lost-business charges for demonstrating at the Mall of America in Minnesota. It's unclear from the story who is behind this use of restitution laws: the prosecutors or the targets of the protest? If the latter, it seems anomalous that the victim of a crime can help determine the punishment. In criminal law enforcement generally, a governmental decisionmaker (a prosecutor) not affiliated with either the accused or the victim makes the decision what penalties to seek.
Either way, these uses of restitution laws seem designed to deter speech activity, albeit speech activity accompanied by civil disobedience. Although there is no First Amendment right to trespass, fining a protestor tens of thousands of dollars for a brief, peaceful demonstration seems disproportionate. Additionally, the Supreme Court has held that even criminal laws regulating unprotected speech cannot target speech based on viewpoint. (A First Amendment challenge to a particular application of a neutral criminal law would be difficult, however, because it would require the protestor in that particular case to show that a desire to punish the speech motivated the decision to seek additional penalties in that case.)
You can listen to the NPR story here.
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Here in Seattle we have the same thing: protestors/civil disobedience re Shell Oil rigs being charged with CRIMES for relatively innocuous protest activities. I’m appalled. Ditto for animal rights activists protesting a new giant underground animal testing facility at the public University of Washington. I’m interested in seeing an article addressing the issue. I’d like to see proposals that enable protestors to fight back in a meaningful way, as these are clearly stifling discussion and free speech.