Criminal Sanctions Are Ineffective in cases like the one involving Tucker Carlson, But “Sue the Bastards“ Works Well
WASHINGTON, D.C. (November 12, 2017) – The tactic of using violence, and threats of violence, to silence speech which some don’t like – sometimes called Violence2Silence – has now spread well beyond our nation’s college campuses, where it has often been tolerated if not encouraged, to residential neighborhoods with the recent incident at the home of Tucker Carlson, a conservative TV commentator.
Although it is far from the first instance where journalists have been physically attacked – e.g., eggs and water bottles were hurled at reporters during a counter-protest against the “Unite the Right 2” rally in August – it appears to be the first time the tactic has been escalated to include criminal acts and terroristic threats involving their homes and families in otherwise peaceful residential neighborhoods.
The criminal law has not been an effective tool in deterring such criminal violence nor in punishing the perpetrators, but an underutilized weapon - one which is not directly susceptible to political influence and public pressure which can sometimes stymie criminal prosecution - has proven to work very well, suggests public interest law professor John Banzhaf. The weapon is to "Sue The Bastards."
In the Tucker Carlson incident, those upset with his views on various political issues, apparently in a effort to intimidate him into moderating his positions, reportedly engaged in various criminal actions at his home including vandalism (e.g., spray painting his driveway), damaging his property (e.g., cracking his door), making terroristic threats of future violence to him as well as to his family, etc.
Much to the outrage of many, including some prominent persons who are philosophically opposed to Tucker Carlson, it appears that no arrests have yet been made, even though one of the participants has identified himself in a published article, and many of the participants' faces appear on numerous videotapes.
Criminal law is not effective in deterring these kinds of criminal violence, says Banzhaf, "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
On the other hand, the tactic of using civil legal action (often termed "Sue the Bastards"), which has been so effective in fighting for civil rights, women's rights, smokers' rights (to obtain damages), nonsmokers' rights (to clean air), gay rights, gun rights, and in many other areas, may also work if we start to "Sue the Criminal Protestors" before it's too late, he suggests.
As Prof Banzhaf wrote in the National Law Journal more than two years ago, there are many reasons why the criminal law has often actually encouraged - rather than discouraged - criminal protestors.
Protestors who violate criminal laws know that their chances of actually being arrested are small, as more police forces too often yield to their blockades, their street-blocking "die-ins," their tactics of chaining themselves to things, making verbal and other threats, vandalizing property, etc.
Indeed, often police seem reluctant to make arrests and/or are ordered not to do so by politicians for a variety of reasons. There's also the attitude of allowing them to "let off steam" so that they do not further escalate their criminal behavior, and, at times, there may even be sympathy for their cause.
Even if a few criminal protestors are arrested, they usually face only a token fine, which is a small price to pay, they may often think, for getting even more publicity for their cause.
Indeed, if they refuse to pay the small fine and are prosecuted in court, they can often turn the trial into a major media event to focus even more public attention on their grievances - a tactic honed by the Chicago Seven.
Moreover, the arrests themselves can also be publicized, with cell phone still pictures or videos posted on the Internet to gain sympathy, and to increase their status as "martyrs."
Also, often an illegal demonstration at the residence of a political opponent such as Tucker Carlson can be seen as something fun and exciting and interesting to do - where people can join friends, meet those of the opposite sex, and have a good time while doing something they can feel proud about, all at very low cost and little real risk to themselves.
Civil tort actions, which can be brought by anyone who was adversely affected by the wrongful acts, avoid many of the problems and limitations of attempting to rely upon the criminal law to deter protests involving violent criminal acts, or requiring those responsible to pay the costs.
The plaintiff's lawyer decides against whom to bring the civil actions and when, so the cooperation of the police or other public officials isn't necessary. He may, of course, seek to sue only some of the criminals, using the threat of a civil action to persuade others to testify against their colleagues.
Rather than being able to seek only small fines for criminal violations, plaintiffs in a civil action can seek large amounts in ordinary actual damages.
Moreover, because the acts were not only intentional but also criminal, they can seek punitive damages far in excess of the cost of the actual damages (e.g., the cost to Tucker Carlson of fixing his door, removing the spray paint from his driveway, etc.).
Protestors considering escalating their activities to criminal violence, who might not be deterred by threats of small fines, may think twice if they know they may face much larger civil judgements, backed upon by the seizure of their cars and other property, garnishment of their wages, etc.
In Tucker Carlson's situation, even a jury of often-liberal D.C. jurors may nevertheless be outraged, and award large punitive damages, because he and his wife and children were subjected to such outrageous acts at their own home.
In a civil proceeding like one Tucker Carlson could possibly file, defendants as well as witnesses can be required to testify against themselves and against their criminal accomplices, something they are protected from in a criminal proceeding. Likewise, the standard of proof in a civil trial is far lower; it is much easier to win by proving guilt by a mere preponderance of evidence than beyond any reasonable doubt.
"Suing the Criminal Protestors" - like "Suing the Bastards" - may be the most effective way to help deter such illegal and criminal actions, says Banzhaf, citing these examples.
When other groups learn that the Sea Shepherd Conservation Society has been forced to pay $2.55 million to Japanese companies for illegally using acid and smoke bombs to disrupt their whaling, they may think twice before committing crimes to help their cause, says Banzhaf, who helped instigate civil suits against those who unlawfully blocked entrances to the George Washington Bridge to make a political point.
In another example, a student who illegally chained himself to some construction equipment because he opposed an oil pipeline was forced to pay out big bucks for his criminal conduct As NPR reported it, he was apparently ready to accept a relatively painless conviction and a tiny fine for trespass, but not to pay the pipeline company $39,000 in restitution.
Similarly, eleven protesters who allegedly engaged in illegal activities at the Mall of America faced large restitution claims from the City of Bloomington. Pro-life activists were successfully sued under RICO for physically blocking access to abortion clinics under a theory which might even by used against a variety of other protestors. says Banzhaf.
What happened to Tucker Carlson can happen to any prominent person, and "Suing the Bastards" may be the only effective weapon to keep this from escalating even further, argues Banzhaf.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf