Problems of punitive damages for political protest and civil disobedience.

• Author: Axelsen, Kaarin L.
• Position: Oregon - Case Note

"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)

1. 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

   1. Punitive Damages and Juror Discretion

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

1. 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. This Note concludes that under the guarantees of both the First Amendment of the United States Constitution and the Oregon Constitution courts must employ a sensitive jury instruction on punitive damages when expression and unlawful conduct are intertwined.

   Il. Summary of the Case

   In 1987, members of the environmental group "Earth First!" staged a widely publicized demonstration to protest the policies of the U.S. Forest Service.(18) They demonstrated on Forest Service property in a national forest where Huffman and Wright was engaged in logging activities. The protestors chained themselves to Huffman and Wright's logging equipment and concurrently made statements, chanted slogans, and sang. One protester climbed a piece of equipment and hung a large banner. The protest caused a partial shutdown of Huffman and Wright's logging operations for most of the day.(19) The protesters were arrested and charged with, and subsequently convicted of, criminal mischief in the third degree.(20) The logging company filed a civil suit for trespass to chattels and sought compensatory and punitive damages for the shutdown.(21)

   The defendants did not challenge the criminal conviction, and they conceded liability for compensatory damages in the civil suit. However, they argued that awarding punitive damages would violate their light to free expression as guaranteed by the Oregon Constitution(22) and the First and Fourteenth Amendments of the United States Constitution.(23) Defendants argued that all of their conduct was expressive, and citing Wheeler v. Green,(24) argued that the Oregon Constitution limits recovery for torts caused by "abuse of speech" to compensatory damages, and precludes any award of punitive damages.(25) Because the defendants viewed all of their conduct as expressive and therefore protected from punitive damages, they did not request a jury instruction to limit the assessment of punitive damages to the non-expressive aspect of the conduct.(26) The jury instruction actually given was based on Oregon Uniform Civil Jury Instruction (UCJI) 35.01.(27) The court instructed the jury that they could award punitive damages if defendants' conduct was wanton and caused damage to plaintiff, in order not only to punish defendants but also to deter similar conduct by them and others in the future.(28) The jury was told that an award of punitive damages was discretionary and that it could consider "the importance to society in determining similar misconduct in the future."(29) In determining the amount of punitive damages, the jury could consider the following: the character of defendants' conduct, the defendants' motives, the sum necessary to discourage defendants and others from engaging in similar conduct in the future, and defendants' financial resources.(30) The jury awarded $25,000 in punitive damages against each defendant.(31)

   The Oregon Court of Appeals upheld the trial court's decision(32) and the Oregon Supreme Court affirmed.(33) The Oregon Supreme Court, like the Court of Appeals, recognized that there was no protection for the trespassory acts.(34) The court noted that the tort of trespass "cannot readily be committed by speech, even if speech accompardes the trespass."(35) On review, the punitive damages could stand if supported by any of defendants' activities.(36) Because the protesters did not request a jury instruction separating the protected expressive conduct from non-expressive conduct, the court felt precluded from reviewing the award for actual consideration of improper factors by the jury.(37) The majority did not address the jury instruction on punitive damages for the non-protected conduct that expressly permitted the jury to consider protected conduct.(38)

3. United States Constitution First Amendment Analysis

   Although the First Amendment protects the right to protest, the protection is not absolute.(39) Government regulation of expressive conduct, including allowing punitive damages, is generally permissible when the regulation is not aimed at the content of the expression.

   A protest demonstration, such as the one in Huffman & Wright, necessarily involves both conduct and speech. hi situations involving such "mixed conduct,"(40) the government can regulate conduct through rules that are not aimed at expression,(41) even where regulation has an incidental impact on First Amendment freedoms, so long as an important government interest is at stake.(42) In United States v. O'Brien,(43) the Supreme Court stated what has become the standard test for regulating expressive conduct:

   [A] government regulation is sufficiently justified if it is within the constitutional

   power of the Government; if it furthers an important or substantial governmental

   interest; if the governmental interest is unrelated to the suppression

   of free expression; and if the incidental restriction on alleged First Amendment

   freedoms is no greater than is essential to the furtherance of that interest.(44)

   The O'Brien case involved a man who burned his draft card in order to protest the Vietnam War.(45) He was convicted under a statute that made it a crime to knowingly destroy, mutilate, or change a draft card.(46) The Supreme Court rejected the defendant's First Amendment challenge because the statute was within Congress' constitutional authority to raise and support armies,(47) and because it furthered the substantial governmental interest in assuring the availability of draft cards.(48) The government interest was unrelated to suppression of expression because it applied to the destruction of the cards for any reason or for no reason.(49) The government interest did not infringe on First Amendment freedoms any further than necessary to advance the interest because the regulation prevented only conduct that interfered with the government interest.(50)

   A generally applicable trespass law passes the O'Brien test even when applied to trespassers who are engaged in expression.(51) A trespass statute is within governmental powers to regulate conduct...