Public Interest

Are Companies Really Fighting Protesters With Restitution Claims?

The new cost of free speech.

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A few weeks ago, I wrote about the conflict between the Institute of Cetacean Research, which sends out boats to kill whales, and Sea Shepherd, which sends out boats to try to stop the Institute’s boats using controversial and dangerous methods. That conflict has spilled over from the high seas to federal court, where the Institute is trying to use the Alien Tort Statute to stop Sea Shepherd from interfering with its whaling operation — and to recoup $2 million in damages.

It turns out that in recent years, this story may have been playing out on a much smaller scale across the United States: activist interrupts operation, operator seeks recompense in court. Take this example reported by NPR: A student in Michigan, Duncan Tarr, opposes an oil pipeline. As part of an organized protest, he locked himself to a piece of construction equipment. The fire department arrived and cut the lock. The police arrested Tarr and charged him with trespass. This is how these things go.

But Michigan has a law requiring a person who’s been convicted of a crime to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction.” And Precision Pipeline apparently pressed for a restitution order against Tarr. Tarr was ready for a trespass conviction, but he was not ready to owe $39,000 to the pipeline company as restitution for the company’s lost productivity.

You may feel bad for accruing six figures of debt for three years of torture law school, but it must be even worse to accrue five figures of debt for ninety minutes of protesting.

It’s hard to tell whether companies’ making protesters pay is a real trend, though. In the most prominent recent cases, potential restitution claimants have been convinced to abandon their claims. There are the fourteen people who chained themselves to an Oakland train station to protest wanton police killings of black youth, arrested and potentially facing some $70,000 in restitution before transit operator BART decided to back down. Eleven people in Minnesota who were also protesting institutional racism faced a $40,000 restitution claim from the Mall of America, before the Mall also decided to back down (though the City of Bloomington is still pressing for restitution).

And restitution claims appear to have failed in other ways too. Consider the incredible case of the 83-year-old nun Sister Megan Rice, one of three people who broke into a facility storing “enough highly enriched uranium to make thousands of nuclear warheads” and spray-painted anti-war graffiti on the walls. She and her fellow graffitists were ordered to pay $53,000 in restitution, but then their sabotage convictions were overturned.

In fact, according to attorney Daniel Gregor, in an interview with Steven Wishnia for the website defendingdissent.org, the real trend is prosecutors threatening large restitution orders in order to force plea deals favorable to the government: “Fundamentally, it’s a bluff. It’s a scare tactic to get people to plead out…. If you can terrify somebody by asking for $30,000 in restitution and then drop it in exchange for a plea, it’s a very powerful bargaining chip.”

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But let’s assume for a moment that the restitution trend is real. What’s to make of it?

Unsurprisingly, the Cato Institute is in the “pro” camp. NPR quotes Roger Pilon, the Institute’s Vice President of Legal Affairs: “We’ve established rules for protest. If you violate them, you can’t expect to get away scot-free. After all, you can’t impose the cost of your moral virtue on the backs of people who are just trying to run their own business.”

Also unsurprisingly, protest lawyers are in the “anti” camp. Attorney Mark Goldstone, also in an interview for defendingdissent.org, explained his discomfort: “It’s a very dangerous tactic that should be resisted…. It clearly chills freedom of assembly. It clearly chills people’s interest in nonviolent civil disobedience.”

Forced to choose between worrying about businesses having occasionally to pick up the tab for protesters’ moral virtue and worrying about potential five-figure debt loads chilling our fundamental freedoms, I’d side more toward the latter. So I’ll be hoping that, at least in run-of-the-mill protest cases, this restitution “trend” never really materializes.

That Free Speech Will Cost You $70,000 [Defending Dissent]
Companies Fight Back Against Protesters With Financial Pressure [NPR]

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Earlier: Are You Really A Pirate If You’re Trying To Save The Whales?

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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