GUILTY BUT CIVILLY DISOBEDIENT:
RECONCILING CIVIL DISOBEDIENCE
AND THE RULE OF LAW
Matthew R. Hall*
INTRODUCTION
Conventional wisdom holds that attempting to address civil
disobedience within the positive law presents a paradox—an
impossibility of “legal illegality.”1 This Article suggests a resolution to
that seemingly hopeless task in the form of a proposed verdict of Guilty
But Civilly Disobedient (GBCD). By arriving at a doctrinal definition
of civil disobedience fixed in the criminal law, rather than an abstract
definition suspended in the realm of moral philosophy, the GBCD
verdict addresses several problems threatening to undermine the vitality
of civil disobedience and its potential for service to the social order.
Civil disobedience occupies a crucial, but precarious, role in our
political system. The philosophy of civil disobedience embodies the
recognition that obligations beyond those of the law might compel law
breaking, but the doctrine steers that impulse toward a tightly-cabined
form of illegal protest nevertheless consistent with respect for the rule
of law. As such, civil disobedience serves as a firebreak between legal
protest and rebellion, while simultaneously providing a safety valve
through which the profoundly disaffected can vent dissent without
resorting to more extreme means. Civil disobedience broadly benefits
society by liberating views divergent from the status quo—in much the
same manner as free speech itself—and maximizing the prospect that a
democratic society will correct its mistakes, or at least reexamine
intensely divisive decisions in a manner that assures dissidents that they
* Assistant Professor, University of Mississippi School of Law. The author presented an
earlier version of this work at a Young Scholars Workshop at the Southeastern Association of
Law Schools Annual Meeting. Professor Hall received research support for this Article from the
Center for Justice and Rule of Law at the University of Mississippi School of Law, which is
funded by the Office of Justice Programs at the Department of Justice. The opinions expressed in
this Article, however, are those of Professor Hall alone.
1 Francis A. Allen, Civil Disobedience and the Legal Order, in THE LAW OF DISSENT AND
RIOTS 121, 121 (M. Cherif Bassiouni ed., 1971) (“There is high authority for the proposition that
lawyers are capable of contributing little of value to a discussion of civil disobedience.”).
2083
2084
CARDOZO LAW REVIEW
[Vol. 28:5
have been heard. Accordingly, in order for civil disobedience to
succeed, it must retain a sufficiently distinct moral status such that
society as a whole respects its place in the political order. If civil
disobedience loses its clarity, if the sharp edges demarking the firebreak
deteriorate, civil disobedience fails in its role, loses its force, and erodes
the rule of law.
Unfortunately, we have reached that point. Both disobedients and
scholars advocate the abolition of punishment for civilly disobedient
acts. Freedom from punishment removes a crucial deterrent that
restrains civil disobedience. Acceptance of punishment establishes that
civil disobedience respects the rule of law and ensures its weighty,
rather than petty, character within the political debate. Another danger
lies with those protesters who claim participation in the tradition of civil
disobedience even though they direct their conduct toward private
parties, rather than the government, and thus wrongly reposition civil
disobedience as direct action designed to stop particular conduct rather
than as political discourse intended to produce systemic change. On yet
another front, public officials cloak their defiance of the law in the
mantle of civil disobedience, posing a distinct danger, not just to the
obligation to obey the law, but to the need for consistent administration
of the law by the legal system itself.
This Article addresses these phenomena within the terms of the
GBCD verdict. Further, this Article grounds and embeds its analysis
and conclusions within both the analytic jurisprudence describing the
rule of law and the theoretical understanding of criminal punishment.
Accordingly, this Article begins in Part I with a canvass of the
philosophy of civil disobedience. Next, in Part II, this Article considers
some basic rule of law norms crucial to reaching a stable doctrinal
definition of civil disobedience. This Article moves, in Part III, to
examine the dynamics that threaten to erode civil disobedience.
Critically, in Part IV, this Article proposes the GBCD verdict and
demonstrates how that verdict preserves authentic civil disobedience
and brings it within the rule of law. In Part V, this Article elucidates
how the GBCD verdict fits within criminal punishment theory. This
Article concludes that only by overcoming the apparent paradox of
“legal illegality” in the form of the GBCD verdict can society prevent
spurious claims of civil disobedience and preserve its beneficial role for
society.
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2085
I. THE PHILOSOPHY OF CIVIL DISOBEDIENCE
Although definitions of civil disobedience abound,2 they generally
concur on the fundamental notion that it entails a conscientious
violation of the law as a protest over an unjust law or governmental
policy and therefore, is morally justified.3 In order to craft a more
formal definition under the positive criminal law, a more precise—and
elemental—definition is necessary.
Therefore, this Article will
approach civil disobedience generally as a political protest over an
2 E.g., ROBERT T. HALL, THE MORALITY OF CIVIL DISOBEDIENCE 50 (1971) (listing the
elements as a willingness to face punishment, exhaustion of legal means, use of nonviolent
methods, publication of the act, and a moral objection to the law or policy); JOHN RAWLS, A
THEORY OF JUSTICE 320 (rev. ed. 1999) (defining civil disobedience as “public, nonviolent,
conscientious yet political act contrary to law usually done with the aim of bringing about a
change in the law or policies of the government”); Christian Bay, Civil Disobedience:
Prerequisite for Democracy in Mass Society, in POLITICAL OBLIGATION AND CIVIL
DISOBEDIENCE: READINGS 293, 295-98 (Michael P. Smith & Kenneth L. Deutsch eds., 1972)
(defining civil disobedience as a premeditated, illegal, public, and limited act with ends short of
the overthrow of the system); Hugo Bedau, On Civil Disobedience, in MORALITY AND THE LAW
69, 69-77 (Robert M. Baird & Stuart E. Rosenbaum eds., 1988) (listing the elements as an illegal
act that is public, nonviolent, conscientious, and thwarts the objectionable policy); Religious
Obedience and Civil Disobedience: A Policy Statement of the National Council of the Churches
of Christ in the United States of America, in POLITICAL OBLIGATION AND CIVIL DISOBEDIENCE:
READINGS 66, 70-71 (Michael P. Smith & Kenneth L. Deutsch eds., 1972) (describing civil
disobedience as a deliberate, public, peaceable, violation of unjust law in obedience to conscience
with recognition of state’s legal authority to punish); Michael P. Smith & Kenneth L. Deutsch,
Perspectives on Obligation and Disobedience, in POLITICAL OBLIGATION AND CIVIL
DISOBEDIENCE: READINGS 3, 3-4 (Michael P. Smith & Kenneth L. Deutsch eds., 1972) (defining
civil disobedience as an illegal and public act to draw public attention to injustice, and to protest
and reform that injustice, with a willingness to suffer the consequences); Bruce Ledewitz,
Perspectives on the Law of the American Sit-In, 16 WHITTIER L. REV. 499, 502 (1995) (defining
a civil disobedience sit-in as entailing a politically motivated, nonviolent, physical occupation in
violation of the law); Kevin H. Smith, Essay, Therapeutic Civil Disobedience: A Preliminary
Exploration, 31 U. MEM. L. REV. 99, 126-27 (2000) (defining civil disobedience as a public,
nonviolent, violation of law undertaken after other legal efforts have failed and based on a
considered moral judgment and accompanied by acceptance of punishment); Susan Tiefenbrun,
Civil Disobedience and the U.S. Constitution, 32 SW. U. L. REV. 677, 684 (2003) (decoding civil
disobedience as “a non-violent act of breaking the law openly and publicly, without harming
others, and accompanied by a willingness to accept punishment”); see also Steven M. Bauer &
Peter J. Eckerstrom, Note, The State Made Me Do It: The Applicability of the Necessity Defense
to Civil Disobedience, 39 STAN. L. REV. 1173, 1175 n.14 (1987) (noting multiple definitions).
3 See Martin Luther King, Jr., Letter From a Birmingham Jail, in LAW AND MORALITY:
READINGS IN LEGAL PHILOSOPHY 453, 459 (David Dyzenhaus & Arthur Ripstein eds., 1996)
(“One who breaks an unjust law must do it openly, lovingly . . . and with a willingness to accept
the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and
willingly accepts the penalty by staying in jail to arouse the conscience of the community over its
injustice, is in reality expressing the very highest respect for the law.”); Henry D. Thoreau, Civil
Disobedience, in CIVIL DISOBEDIENCE: THEORY AND PRACTICE 27, 35 (Hugo Adam Bedau ed.,
1969) (“If . . . injustice is part of the necessary friction of the machine of government . . . then, I
say, break the law. Let your life be a counter friction to stop the machine.”); see also LEO
TOLSTOY, TOLSTOY’S WRITINGS ON CIVIL DISOBEDIENCE AND NON-VIOLENCE (1967) (calling
for conscientious refusal to follow immoral authority).
2086
CARDOZO LAW REVIEW
[Vol. 28:5
unjust law or policy committed by violating law conscientiously,
openly, and nonviolently, with respect for the interests of others and
with acceptance of punishment.
A.
Context
The elements of justified civil disobedience depend enormously on
the social context of the protest. The concept of disobedience poses no
dilemma under an illegitimate regime because no duty of obedience
pertains.4 Further, even under a democracy resting on popular
sovereignty, conditions may deteriorate so badly that revolution is
justified.5 Therefore, the interesting question is whether individuals
may disobey particular laws in a basically just society where citizens
accept the legitimacy of the government and abide by a general
obligation to obey the laws.6 Indeed, John Rawls contends that a theory
of civil disobedience makes sense only in “the special case of a nearly
just society, one that is well-ordered for the most part but in which some
serious violations of justice nevertheless do occur.”7
In a system of near justice, civil disobedience does not challenge
the legitimacy of the government.8 Instead, it constitutes protest to a
particular law or policy. The issue is whether citizens fundamentally
opposed to that law or policy possess only two options: lawful protest
coupled with obedience, or rebellion. The philosophy of civil
disobedience asserts that a middle ground exists when lawful protest
fails.9 Advocates of civil disobedience believe that, in a state of near
justice, disobedients can navigate this perilous middle ground because
their limited acts of defiance pose only a negligible threat to society
and, further, that the danger diminishes if the disobedients act with
4 Daniel Markovits, Essay, Democratic Disobedience, 114 YALE L.J. 1897, 1936 (2005)
(“Disobedience [against autocratic or authoritarian—and hence illegitimate—regimes] may of
course also be justified, but that conclusion is uninteresting, because it is built into the
characterization of the regimes as illegitimate.”).
5 See THE DECLARATION OF INDEPENDENCE para. 2 (1776) (“Whenever any Form of
Government becomes destructive of these ends, it is the Right of the People to alter or to abolish
it . . . .”).
6 See Hall, supra note 2, at 62-72 (accepting a prima facie obligation to obey that is
surpassed only in specific instances—as opposed to being generally surpassed during revolution).
7 Rawls, supra note 2, at 319 (explaining that near justice includes an assumption of
democracy).
8 See id.; MICHAEL WALZER, OBLIGATIONS: ESSAYS ON DISOBEDIENCE, WAR, AND
CITIZENSHIP 24 (1970).
9 See Charles R. DiSalvo, Abortion and Consensus: The Futility of Speech, the Power of
Disobedience, 48 WASH. & LEE L. REV. 219, 219 (1991) (“When words fail to resolve
fundamental, no-compromise issues, an open society has two choices: political violence or civil
disobedience.”).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2087
respect for others and for the rule of law. The basic claim is that a
system of near justice is stable enough to tolerate this constrained form
of disobedience.10 Indeed, Rawls goes so far as to state that forbearance
for civil disobedience constitutes a “crucial test case for any theory of
the moral basis of democracy.”11
B.
Elements
With this background, it makes sense to proceed to an examination
of the particular elements that make civil disobedience a permissible
form of law breaking. These elements often interlock and mutually
reinforce the concept that civil disobedience, despite its violation of the
law, otherwise expresses “fidelity to law.”12
1.
Political
Justified civil disobedience requires a political goal.13 The civilly
disobedient act must hope to provoke change through the public debate
and decision,14 instead of intending principally to block or thwart the
disfavored law or policy; although secondarily, the protest may have
that effect.15 Civil disobedience, consequently, differs from direct
10 See, e.g., Rawls, supra note 2, at 336 (characterizing civil disobedience as “one of the
stabilizing devices of a constitutional system”); Walzer, supra note 8, at 11, 17 & n.18 (“[T]he
state can live with, even if it chooses not to accommodate, groups with partial claims against
itself.”). See also REX MARTIN, A SYSTEM OF RIGHTS 211 (1997) (“some kinds of states can
‘take’ civil disobedience and even incorporate it as a feature in their theoretic structure”).
11 Rawls, supra note 2, at 319; see also STEPHEN L. CARTER, THE DISSENT OF THE
GOVERNED: A MEDIATION ON LAW, RELIGION, AND LOYALTY 53 (1998) (explaining that social
contract theory as understood in the Declaration of Independence holds that “the justice of the
sovereign turns in large measure” on how it handles “dissent rather than consent”); Tiefenbrun,
supra note 2, at 678 (“Jefferson’s ‘spirit of resistance’ refers to both the right of revolution and
the right of civil disobedience”).
12 Rawls, supra note 2, at 322.
13 See, e.g., DiSalvo, supra note 9, at 219-220 (explaining that civil disobedience leads to
“productive discussion,” unlike political violence, which coerces); Markovits, supra note 4, at
1941-42 (explaining that disobedience may not coerce change in policy). But see Bedau, supra
note 2, at 72-74 (advocating acts that “hamper and perhaps prevent the government from
enforcing the law” and stating that communicative acts often constitute mere harassment and
appear inane, ineffective, and absurd).
14 See, e.g., Rawls, supra note 2, at 321 (describing civil disobedience as an “expression of
profound and conscientious political conviction” akin to a speech “addressed to the majority that
holds political power” and “guided and justified by political principles”); Mark Edward
DeForrest, Comment, Civil Disobedience: Its Nature and Role in the American Legal Landscape,
33 GONZ. L. REV. 653, 658 (1997-98) (stating that civil disobedience “must be performed in the
public square, where the civic dialogue of any society takes place”).
15 One might describe proper civil disobedience as symbolic, formal, persuasive, or
2088
CARDOZO LAW REVIEW
[Vol. 28:5
action, which seeks to halt disfavored conduct immediately rather than
more slowly through political change.
2.
Conscientiousness
Civil disobedience entails an act of conscience—defiance of law
borne out of a deeply-held belief in the injustice of a law or policy.
Writers differ dramatically about the permissible source of this belief,
with some pointing explicitly to religion,16 others contending that the
belief must arise out of a common sense of justice,17 and yet others
acknowledging multiple obligations overriding the law.18 Some writers
concede that, in reality, those who commit civil disobedience may act
out of multiple motives—social, moral, or personal (including, even,
self-interest).19 A similar divergence appears with regard to whether the
conscientious decision to engage in civil disobedience must have an
objective basis, with some writers mandating objectivity,20 others
demanding plausibility,21 and others comfortable with more subjective
judgments.22 Consensus exists, however, around the proposition that
ritualized—as opposed to instrumentalist or coercive. See ALBERTO MELUCCI, CHALLENGING
CODES: COLLECTIVE ACTION IN THE INFORMATION AGE 378-79 (1996) (distinguishing between
the roles of “instrumental action” and “symbolic” or “expressive” action); Delbert D. Smith, The
Legitimacy of Civil Disobedience as a Legal Concept, in THE LAW OF DISSENT AND RIOTS 167,
182 (M. Cherif Bassiouni ed., 1971) (describing civil disobedience as “formalized dissent,”
“ritualized, and “a symbol for something else”). But see ERNEST VAN DEN HAAG, POLITICAL
VIOLENCE AND CIVIL DISOBEDIENCE 29 (1972) (advocating a transition from “persuasive civil
disobedience” to “coercive civil disobedience” if necessary or effective).
16 See generally Tolstoy, supra note 3; King, supra note 3.
17 See Rawls, supra note 2, at 321, 341 (stating that the disobedient “invokes the commonly
shared conception of justice that underlies the political order,” not group interest or “personal
morality or religious doctrines, though they may coincide” and that civil disobedience must rest
on general political principles, not personal interests or political allegiance).
18 Walzer, supra note 8, at xvi (“[W]e sometimes want to withdraw our consent because of
conflicting (overriding) obligations elsewhere or perhaps only in defense of ourselves as persons
capable of saying yes and no for reasons of our own.”).
19 Hall, supra note 2, at 24 (explaining that the motive for civil disobedience differs from the
“personal desire” of normal crime); id. at 41 (stating that personal, social, and moral motives
often combine); Marshall Cohen, Liberalism and Disobedience, 1 PHIL. & PUB. AFF. 283, 285
(1972) (explaining that some forms of disobedience may embody self-interest); Markovits, supra
note 4, at 1898 (“[D]isobedience is not guided by greed or self-dealing but by principle, and it is
therefore not criminal in any ordinary sense. . . .”); Smith, supra note 15, at 180 (stating that
disobedients “may have a number of motivations”).
20 DeForrest, supra note 14, at 660-63 (stating that “[u]nless an objective moral order is
acknowledged, questions of fairness and justice become mere issues of power and
dominance. . .”).
21 ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 104-05 (1975) (requiring a sincere
act of conscience such that the moral claim is plausible).
22 Rawls, supra note 2, at 341 (demanding resort to commonly held principles of justice, but
conceding that each person must decide individually “whether the circumstances justify civil
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2089
conscience requires an objective larger than self-interest.23
Several writers have further argued that conscientiousness requires
reserving civil disobedience for only the gravest injustices24 or for only
those instances in which reasonable means of legal redress have failed.25
In this version, conscientiousness embodies consideration,
contemplation, or due deliberation.
3. Nonviolence and Respectfulness
Critically, civil disobedience must take place nonviolently, with a
minimum of force, and with respect for the rights and interests of
others.26 This last component of the philosophy plays a crucial role in
ensuring that civil disobedience poses little threat to social order.27
Because of the inevitable tension inherent in illegal protest,28
disobedience”); Ronald Dworkin, Civil Disobedience, in READINGS IN THE PHILOSOPHY OF LAW
6, 12-13 (John Arthur & William H. Shaw eds., 2d ed., 1993) (rejecting a “strongbox theory of
law” that posits a right answer and instead stating that our system pursues its goals by “inviting
citizens to decide . . . for themselves”).
23 Allen, supra note 1, at 127 (stating that conscience requires, at a minimum, an objective
larger that self-interest).
24 See, e.g., Rawls, supra note 2, at 326-27 (limiting civil disobedience to violations of
equality and blatant violations of equal opportunity).
25 See, e.g., id. at 327-28 (explaining that, except in extreme cases, civil disobedience is
justified only when “the normal appeals to the political majority have already been made in good
faith and . . . they have failed”); see also BURTON M. LEISER, LIBERTY, JUSTICE, AND MORALS:
CONTEMPORARY VALUES CONFLICTS 339 (1973) (“When, in a democracy, the organs of
government become so remote from the people that the latter feel that they have no direct means
of communicating with those who set the policies that govern their lives, they may be driven, for
lack of any other means, to disobey the laws, merely in order to bring their grievances to the
attention of the public at large and of the responsible officials.”).
26 See Rawls, supra note 2, at 321-22 (characterizing civil disobedience as a “mode of
address” that embodies fidelity to law by remaining nonviolent); Van den Haag, supra note 15, at
3 (“Ideally, civil disobedience involves injury to no one; and certainly harm to innocent
bystanders, and even to those held responsible for whatever is opposed, and must remain
minor.”). See also Walzer, supra note 8, at 24 (explaining that civil disobedience “requires first
the adoption of methods that do not directly coerce or oppress other members of society”);
Cohen, supra note 19, at 297 (stating that a disobedient “strictly minimizes” deviation from the
law); Smith, supra note 15, at 182 (explaining that with justified civil disobedience “lawbreaking
is minimal and for the most part formal”); DeForrest, supra note 14, at 657 (explaining that,
according to Gandhi, violence would multiply injustice and evil).
27 Martin, supra note 10, at 212 (explaining that civil disobedience recognizes authority and
poses little threat to order if it includes a commitment to avoid substantial violations of others’
rights); Harris L. Wofford, Jr., Law as a Question: The Uses and Abuses of Civil Disobedience, in
ON CIVIL DISOBEDIENCE: AMERICAN ESSAYS, OLD AND NEW 79, 93 (Robert A. Goldwin ed.,
1970) (“Fortunately civil disobedience provides its own guard against chaos in its commitment to
nonviolence and to accepting the legal consequences of disobedience.”).
28 HOWARD ZINN, DISOBEDIENCE AND DEMOCRACY: NINE FALLACIES ON LAW AND ORDER
39-41 (South End Press 2002) (1968) (explaining that “inevitable tension” makes perfect
nonviolence impossible).
2090
CARDOZO LAW REVIEW
[Vol. 28:5
disobedients must not only eschew violence at the outset of their actions
but also assess their ability to remain peaceful given the reasonably
foreseeable consequences of their conduct.29 Because all law breaking
involves some harm, justified civil disobedience dictates that only
minimal injury may occur and that it must bear a relationship to the
unjust law or policy.30 For example, racial discrimination in the school
system would not justify a protest rendering a fire station ineffective.31
The ban on force is often said to allow for minimal destruction of
property32—the burning of draft cards, for example. Similarly, some
authors are willing to tolerate even de minimis violence in the form of
pushing and shoving incidental to protest.33
4.
Acceptance of Punishment
Also central to the philosophy of civil disobedience stands the
requirement that disobedients accept punishment for their illegal acts,
again in order to demonstrate their fidelity to law and the limited nature
of their defiance.34 They defy the law but then submit to its judgment35
29 Rudolph H. Weingartner, Justifying Civil Disobedience, in MORALITY AND THE LAW 101,
111 (Robert M. Baird & Stuart E. Rosenbaum eds., 1988) (explaining the “foreseeable
consequences” requirement); Morris Keeton, The Morality of Civil Disobedience, 43 TEX. L.
REV. 507, 519 (1965) (requiring that disobedients use due care in foreseeing the consequences of
their actions and in evaluating their ability to maintain nonviolence); see also Frances Olsen,
Peace, Civil Disobedience, and Anti-Discrimination Law: A Critical Appraisal of Reason and
Politics, 57 U. MIAMI L. REV. 989, 994-95 (2003) (explaining the practice of government agents
provocateur used to “stir up enough violence to try to legitimate police repression of non-violent
resistance when it begins to gain popularity”); DeForrest, supra note 14, at 657-68 (stating that
“violence perpetrated against those engaged in civil disobedience by others—such as law
enforcement or counter-demonstrators—should not in itself render the actions of the peaceful
protesters invalid, so long as those engaged in civil disobedience do not themselves resort to
violence”).
30 Keeton, supra note 29, at 516 (requiring that civil disobedience use means relevant to its
goal); Smith, supra note 15, at 172 (requiring proportionality between “the end desired and the
means employed to accomplish it” and stating that “[t]he extent to which society is disturbed
should be commensurate with the alleged evil of the regulation”); id. at 175 (stating that civil
disobedience is permissible “so long as the rights of others are not directly affected in ways that
are not connected with the policy or law under protest”).
31 Smith, supra note 15, at 172.
32 Zinn, supra note 28, at 48 (explaining that “civil disobedience, in situations of urgency
where vital issues are at stake, and other means have been exhausted, may move from mild
actions, to disorder, to overt violence” but cautioning that “it would have to [be] guarded, limited,
aimed carefully at the source of injustice, and preferable directed against property rather than
people”).
33 Ledewitz, supra note 2, at 503; DeForrest, supra note 14, at 657-58.
34 Martin, supra note 10, at 212; Rawls, supra note 2, at 322; Leslie Gielow Jacobs, Applying
Penalty Enhancements to Civil Disobedience: Clarifying the Free Speech Clause Model to Bring
the Social Value of Political Protest Into the Balance, 59 OHIO ST. L.J. 185, 234-35 (1998);
Matthew Lippman, Towards a Recognition of the Necessity Defense for Political Protesters, 48
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2091
as a sacrifice communicating the gravity of the protested injustice.36
Punishment figures prominently in the civil disobedience calculus by
ensuring respect for the law37 and by acting as a deterrent against
spurious or trivial disobedience that would erode social order.38
Properly understood, acceptance of punishment does not justify illegal
conduct.39 Otherwise, civil disobedience would undermine the rule of
law by suggesting that law breakers could purchase the right to commit
crimes by agreeing to pay the price.40 Instead, acceptance of
punishment constitutes recognition of the wrongness of the protest and a
willingness to act in all other regards in abidance with law.41
Punishment also plays a crucial role in compensating for the necessary
subjectivity of the decision to engage in civil disobedience. By simply
punishing all disobedients, society avoids a painful assessment of right
and wrong.42
Significant debate swirls around acceptance of punishment,
however. A strand of thought contends that disobedients need only risk
punishment;43 they may contest guilt, and they need not actually expect
punishment, much less submit themselves to it by either pleading guilty
or not contesting guilt.44 Under this line of thought, acceptance of
punishment would indicate acquiescence to the objectionable policy or
WASH. & LEE L. REV. 235, 242 (1991) (explaining that pleading guilty: indicates depth of
commitment, symbolizes willingness to suffer, demonstrates belief in and respect for the law,
manifests an objection to particular law or policy rather than to the system, minimizes the
possibility that civil disobedience will lead others toward arbitrary disobedience, and indicates
observance of social obligations requiring punishment to restore balance); DeForrest, supra note
14, at 659.
35 M.K. GANDHI, NON-VIOLENT RESISTANCE 79, 81-82 (Schocken Books 1969) (1951)
(explaining that satyagrahi entails voluntary submission to authority and “full surrender”).
36 Jacobs, supra note 34, at 187.
37 King, supra note 3, at 459 (stating that willing acceptance of punishment expresses “the
very highest respect for the law”).
38 Rawls, supra note 2, at 322 (explaining that “it is possible to imagine a legal system in
which conscientious belief that the law is unjust is accepted as a defense for noncompliance” but
such a system would be “unstable even in a state of near justice”); Wofford, supra note 27, at 93
(“Fortunately civil disobedience provides its own guard against chaos in its commitment
to . . . accepting the legal consequences of disobedience.”).
39 Van den Haag, supra note 15, at 33.
40 Id. (explaining that false logic would lead to the conclusion that acceptance of punishment
earned a “moral license to commit crimes”).
41 Id. (distinguishing between the obligation to obey and the obligation to submit).
42 Daniel M. Farrell, Paying the Penalty: Justifiable Civil Disobedience and the Problem of
Punishment, 6 PHIL. & PUB. AFF. 165, 166 (1977).
43 See James L. Cavallaro, Jr., Case Note, The Demise of the Political Necessity Defense:
Indirect Civil Disobedience and United States v. Schoon, 81 CAL. L. REV. 351, 354 (1993); Laura
J. Schulkind, Note, Applying the Necessity Defense to Civil Disobedience Cases, 64 N.Y.U. L.
REV. 79, 79 n.2 (1989).
44 FRANCIS ANTHONY BOYLE, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW
7-30 (1988) (arguing that acquittal constitutes proof of correctness and offering suggestions for
winning at trial).
2092
CARDOZO LAW REVIEW
[Vol. 28:5
law.45 Semantic problems also arise—some disobedients construe
contesting guilt as an assertion of moral guiltlessness independent of its
legal meaning.46 Another group contends that disobedients should
accept punishment, but only for publicity value or for the credibility it
buys them, not for any moral reason or because of fidelity to the law.47
Other writers take the more extreme position that acceptance of
punishment signals continued defiance or ostentatious contempt for the
legal order.48 Some authors note the fear of submitting to possibly
unprincipled police and prosecutorial discretion and the severe
sanctions that a corrupt justice system might impose.49
5.
Openness
Justified civil disobedience must also take place publicly or
openly. Openness interlocks with several of the above elements to
ensure that civil disobedience embodies fidelity to law. Openness
ensures a political act, rather than a personal one.50 Moreover, it
reflects the willingness to accept punishment.51 Some would mandate
advance notice to law enforcement;52 others contend that the act must
only occur in public or bear the “signature” of the protester, such that
45 Leiser, supra note 25, at 340 (contending that a disobedient bears no more responsibility
than the authorities who created the injustice and, therefore, need not “acquiesce passively in any
punishment that may be forthcoming”); Zinn, supra note 28, at 29 (explaining that accepting
punishment would sanction and perpetuate injustice); Frances Olsen, Socrates on Legal
Obligation: Legitimation Theory and Civil Disobedience, 18 GA. L. REV. 929, 960 (1984). Some
authors refuse to even refer to civil disobedience, arguing that the word itself suggests a
pejorative conclusion, and preferring the term civil resistance. See, e.g., Andrew W. McThenia,
Jr., Civil Resistance or Holy Obedience? Reflections From Within a Community of Resistance, 48
WASH. & LEE L. REV. 15, 15-16 (1991).
46 Van den Haag, supra note 15, at 3.
47 Leiser, supra note 25, at 341.
48 VAN DEN HAAG, supra note 15, at 33; Matthew S. Levine, Punishment and Willingness to
Pay, 40 GONZ. L. REV. 329, 374-75 (2004-05) (arguing that a willingness to accept punishment
indicates a “profound disrespect for the legal system” and communicates “a belief that the law has
no moral force”); Olsen, supra note 45, at 946-47, 952, 963 (1984) (explaining the
characterization of Socrates’ decision to accept punishment as a final act of defiance designed to
embarrass the government, and explaining that “legitimation theory provides a set of justicerelated motives for the socially concerned disobedient to forego certain forms of leniency or of
escape from punishment . . .”).
49 ELLIOT M. ZASHIN, CIVIL DISOBEDIENCE AND DEMOCRACY 142-43 (1972).
50 Rawls, supra note 2, 321-22; DeForrest, supra note 14, at 658; cf. Oren Gross, Are Torture
Warrants Warrented?: Pragmatic Absolutism and Official Disobedience, 88 MINN. L. REV. 1481,
1526 (2004) (describing openness following disobedience to law as a “critical component in the
moral and legal choice” that engages and allows an ensuing a “public justificatory exercise”).
51 Rawls, supra note 2, at 322.
52 Id. at 321; see also Keeton, supra note 29, at 515 (explaining that the logic of advanced
notice to law enforcement depends on police willingness to refrain from preventing civil
disobedience).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2093
the authorities know who disobeyed the law.53
C.
Types of Civil Disobedience
Civil disobedience takes two distinct forms: direct disobedience, in
which a protester violates the unjust law itself; and indirect
disobedience, in which a protester violates a generally legitimate law to
protest an unjust law or governmental policy. With direct disobedience,
a court may strike down the unjust law upon judicial review.
Accordingly, some cases of direct disobedience constitute “test cases”
or “provisional” disobedience pending judicial action.54 Such cases
pose little philosophical problem, nor do they challenge the rule of law
significantly.55 Accordingly, some philosophers have stated that civil
disobedience really only concerns “ultimate” disobedience—the
commitment to pursue protest against a law even after a court upholds
it.56
Indirect disobedience poses its own set of analytical challenges. In
contrast to direct disobedience, in which the unjust law provides the
impetus for both the protest and the disobedience, with indirect
disobedience, the unjust law occasions only the protest.57 The logic of
indirect disobedience lies in the fact that some unjust laws, or policies,
will not allow direct disobedience.58 Indirect disobedience, thus, treats
the otherwise just law as a surrogate for the targeted, but unreachable,
injustice. Indeed, the moral gravity of the injustice—and, thus, the
perceived call to illegal protest—may not relate at all to whether the
injustice allows direct disobedience.59
53
54
55
Smith, supra note 2, at 120.
Hall, supra note 2, at 35.
Nor do cases in which protesters violate state law to vindicate federal rights. See Allen,
supra note 1, at 125 (discussing overlapping sovereignty issues). Similarly, conscientious refusal
(noncompliance with a legal order for moral reasons) poses fewer philosophical problems
because it does not represent the same sort of public challenge to the legal order as civil
disobedience. See Rawls, supra note 2, at 323-24. On the other hand, some commentators
believe that morality justifies only “test case” disobedience. ABE FORTAS, CONCERNING
DISSENT AND CIVIL DISOBEDIENCE 18, 50-52 (1968).
56 Id. at 320-21 (stating that the disobedient must be “prepared to oppose the statute even if it
should be upheld”).
57 Weingartner, supra note 29, at 110.
58 For example, civil disobedience against war or foreign policy constitutes indirect
disobedience. Rawls, supra note 2, at 320. Indirect disobedience would also constitute the only
means to protest against a permissive law or policy (such as legal abortion) rather than an
imperative one. DeForrest, supra note 14, at 656. Further, laws against which direct
disobedience is possible might be so vague as to make violation difficult or might contain an
unreasonably harsh penalty. Rawls, supra note 2, at 320.
59 ZINN, supra note 28, at 32-38 (critiquing Justice Fortas’ support for test case disobedience
alone and stating: “[b]y his rule he would find himself supporting an act of civil disobedience
2094
CARDOZO LAW REVIEW
[Vol. 28:5
Because indirect disobedience entails the violation of just law,
some writers refuse to endorse it.60 Even among those writers who do
support indirect disobedience, there lies recognition that it will likely
involve greater harm to society or individuals.61 For instance,
trespassing at a public building may prevent citizens from obtaining
access to services and blocking traffic may prevent people from
reaching the hospital.62 Therefore, indirect disobedience may require
greater attention to establishing a nexus between the illegal act and the
unjust law or policy in order to prevent these spillover harms.63
D.
Role of Civil Disobedience
Although advocates of civil disobedience dispute the contours of
the doctrine and argue over the particulars of the elements, they agree
that civil disobedience is valuable for society64 and has played an
important role in United States history.65 It is not just a concept that
indulges protesters, it is a device that stabilizes government, promotes
order rather than chaos, and productively ameliorates the tensions of
pluralism. Most directly, civil disobedience constitutes a stabilizing or
corrective device, allowing a democratic system to rectify its mistakes.66
aimed directly at a relatively unimportant law, and opposing an act aimed indirectly at a
profoundly immoral law”).
60 Carl Cohen, Law, Speech, and Disobedience, in CIVIL DISOBEDIENCE: THEORY AND
PRACTICE 165, 168-72 (Hugo Adam Bedau ed., 1969).
61 Arguably, however, indirect disobedience entails purer motives because direct
disobedience may embody self-interest. Cohen, supra note 19, at 285.
62 Ledewitz, supra note 2, at 503 (explaining that a sit-in, the quintessential form of indirect
disobedience, entails a “violation of the rights of property and autonomy of those persons who are
its intended or unintended victims” in which the “protestor takes and uses the property of others
without their consent and interferes with their lives without authorization to do so”).
Occasionally, even direct disobedience could have a similar effect—such as when protesters
disobey a ban on their presence by protesting segregation laws at lunch counters or limits on
protest at abortion clinics. Id.
63 Sanford Jay Rosen, Civil Disobedience and Other Such Techniques: Law Making Through
Law Breaking, 37 GEO. WASH. L. REV. 435, 455 n.76 (1968-69) (“The more indirect the act of
disobedience, the greater must be the efforts to establish and disclose a rational nexus between the
goal and the disobedient act. There is an increased likelihood that acts of indirect disobedience
will have results other than the ones intended.” (citation omitted)). Other writers have demanded
greater justification for indirect disobedience, including the exhaustion of legal alternatives and
use of direct disobedience if available. BURTON ZWIEBACH, CIVILITY AND DISOBEDIENCE 199
(1975).
64 The importance of civil disobedience in our history has caused some to speak of a right to
engage in illegal protest. See Ledewitz, supra note 2, at 526-27.
65 For a description of the history of civil disobedience, see Martin C. Loesch, Motive
Testimony and a Civil Disobedience Justification, 5 NOTRE DAME J.L. ETHICS & PUB. POL’Y
1069, 1071-87 (1991), and John W. Whitehead, Civil Disobedience and Operation Rescue: A
Historical and Theoretical Analysis, 48 WASH. & LEE L. REV. 77, 77-92 (1991).
66 RAWLS, supra note 2, at 322, 336 (explaining that civil disobedience “stands for that form
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2095
By standing on the border between legal protest and rebellion, civil
disobedience serves as a firebreak preventing the disaffected from
inching toward rebellion.67 To illuminate this same concept, envision
civil disobedience as a safety valve, drawing off dissent before that
unrest boils over into more severe law breaking.68
More generally, civil disobedience serves the basic values of our
democracy by promoting the capacity of the citizenry for engagement in
the political process.69 In particular, it preserves the dignity of minority
views and, thus, plays an important role in mediating the challenges of a
diverse and plural society.70 In this capacity, civil disobedience reduces
the risks of conformity and, like the free marketplace and free speech,
provides a wider range of choice.71 Accordingly, civil disobedience
constitutes one of many features in our system that balances dissent
with order.72
Nevertheless, if civil disobedience grows too prevalent, it may
result in diminished, or even negative, results. Although a just and
stable society can handle a modicum of civil disobedience, a
proliferation of even arguably justified civil disobedience would result
of dissent at the boundary of fidelity to law” and that “civil disobedience . . . is one of the
stabilizing devices of a constitutional system,” that “civil disobedience used with due restraint
and sound judgment helps to maintain and strengthen just institutions,” and that civil
disobedience “serves to inhibit departures from injustice and correct them when they occur”);
PETER SINGER, DEMOCRACY AND DISOBEDIENCE 84 (1973) (describing civil disobedience as a
“plea for reconsideration”); Markovits, supra note 4, at 1905-40 (articulating a theory of
democratic disobedience in which illegal protest provide “disobedient shocks” to correct the
inevitable deficiencies in mass democracy); DeForrest, supra note 14, at 666-67 (describing the
role of civil disobedience in checking and limiting governmental power).
67 See Ledewitz, supra note 2, at 524 (“We do not always appreciate that civil disobedience
offers . . . a ‘safety valve,’ that channels the powerful emotions of disaffected groups into illegal,
but more or less acceptable, forms.”).
68 Id. at 524 (stating that civil disobedience functions as a “‘safety valve’ that channels the
powerful emotions of disaffected groups into illegal, but more or less acceptable, forms . . . and
not toward revolutionary violence”); DeForrest, supra note 14, at 667-68 (describing civil
disobedience as a “release valve for discontent”).
69 See Carter, supra note 11, at 86 (stating that civil disobedience “provide[s] the community
with crucial definitional moments”); Markovits, supra note 4, at 1933 (describing how
disobedience overcomes political inertia and triggers a democratic reengagement with issues that
the status quo has kept off the political agenda); see also Erich Fromm, Disobedience as a
Psychological and Moral Problem, in MORALITY AND THE LAW, supra note 2 (explaining the
capacity of civil disobedience to promote freedom: “freedom and the capacity for disobedience
are inseparable”).
70 Carter, supra note 11, at 61 (explaining that civil disobedience plays a key role in
preserving “self-constituted communit[ies] of meaning”); DeForrest, supra note 14, at 666
(describing the role of civil disobedience in promoting individual dignity).
71 CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 6-7 (2003) (explaining that
disobedience can serve to “reduce the risks that accompany conformity” and counter the tendency
of “widespread conformity [to] deprive[] the public of information that it needs to have”).
72 Id. at 210-12 (explaining that our system balances conformity with dissent).
2096
CARDOZO LAW REVIEW
[Vol. 28:5
in disorder.73 Other forces conspire to undermine the effectiveness of
civil disobedience when it becomes more common. For instance, if
diametrically opposed groups resort to civil disobedience, not only does
society risk escalation, it becomes difficult to see how competing acts of
illegality improve the discourse.74 Further, if civil disobedience retains
effectiveness, it seems likely that the most extreme groups—or at least
those most frequently using civil disobedience—would gain the upper
hand.75 Ultimately, civil disobedience may just become so common that
it loses its effectiveness and grows banal.76
II. THE RULE OF LAW
In order to explore how the tensions inherent in civil disobedience
coupled with new phenomena pose a danger to the integrity of the
doctrine, a brief foray into the basic norms of rule of law theory is
necessary. Any discussion of the rule of law begins with the concept of
obligation. Indeed, H.L.A. Hart states the axiom that “where there is
73 RAWLS, supra note 2, at 328 (explaining that if “many groups with an equally sound
case . . . for being civilly disobedient” all engaged in illegal protest “serious disorder would
follow” and stating that “there is a limit on the extent to which civil disobedience can be engaged
in without leading to a breakdown in the respect for law and the constitution” as well as a decline
in the effectiveness of civil disobedience).
74 Cf. id. at 329 (explaining the difficulty of ranking the validity of claims from different
groups to engage in civil disobedience and, therefore, concluding “it is often wise to presume that
their claims are indistinguishable”); Keeton, supra note 29, at 514 (examining whether advocates
of civil disobedience are willing to see their opponents employ the same tactics); Ledewitz, supra
note 2, at 512-15 (describing the impasse that results from civil disobedience claims from groups
with irreconcilable views—such as the pro-life and pro-choice movements). Other commentators
have referred to civil disobedience as a tool that amplifies dissent, thus suggesting that competing
claims of civil disobedience amount to a shouting match. See Jacobs supra note 34, at 185-86
(describing civil disobedience as a powerful means of expression because of its emotive appeal);
Olsen, supra note 29, at 995 (describing civil disobedience as a tool to amplify the dissenting
voice). On a lighter note, the simultaneous use of civil disobedience by opposing sides may
produce absurd and tragicomic results. See Wofford, supra note 27, at 81 (illustrating the loss of
meaning that accompanies diametrically opposed disobedience with the following story: “[a]fter
the Supreme Court decision that school segregation was unconstitutional, a Kentucky mayor
called for ‘Gandhian resistance’ (though he added that white people would not want Gandhi to
come to their town)”).
75 See Sam Lehman-Wilzig, The Paradox of Israeli Civil Disobedience and Political Revolt
in Light of the Jewish Tradition, in LIBERAL DEMOCRACY AND THE LIMITS OF TOLERANCE:
ESSAYS IN HONOR AND MEMORY OF YITZHAK RABIN 114, 129 (Raphael Cohen-Almagor ed.,
2000) (explaining that, in the Israeli experience of civil disobedience, moral certainty gives rightwing extremists the upper hand).
76 See Olsen, supra note 29, at 1006 (“Non-violent civil disobedience . . . can, of course,
become routine and banal. When this happens, it loses its effectiveness. The most effective civil
disobedience is that which surprises and forces a reconsideration of firmly held values and a
rethinking of taken-for-granted truths.”).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2097
law . . . human conduct is made in some sense . . . obligatory.”77
Although philosophers debate whether obligation exists separately
from morality,78 the special case of civil disobedience obviates the need
for perfect clarity on the question. Because a discussion of civil
disobedience makes sense only in a state of near justice,79 it is possible
to assume that, in this situation, obligation and morality generally
coexist.80 Thus, the central concern at this juncture is with analytic
jurisprudence rather than moral philosophy.
People give their obedience to the substantive law—what Hart
would call primary rules of obligation—either because they believe in a
duty to follow the rules—what Hart calls internal obligation—or merely
because they fear punishment or give in to social pressure to conform
their conduct to the rules—what Hart calls external obligation.81
Although society exhibits a tension between internal and external
obligation,82 social order will collapse unless at least a majority obey the
rules out of internal obligation.83
The rule of law also entails a set of procedural norms attendant to
the primary rules—what Hart calls secondary rules.84 The secondary
rules include a rule of recognition, through which society determines the
list and text of authoritative rules; a rule of change, which delineates the
process of introducing new primary rules and eliminating old ones; and
rules of adjudication, through which society determines whether a
primary rule has been broken.85
Lon Fuller elaborates on the concept of secondary rules by
describing an internal morality of law—a procedural version of the rule
of law.86 The system must have publicized and prospective rules that
77 H.L.A. Hart, Law as the Union of Primary and Secondary Rules (from H.L.A. HART, THE
CONCEPT OF LAW), in READINGS IN THE PHILOSOPHY OF LAW 108 (John Arthur & William H.
Shaw eds., 2d ed., 1993).
78 See, e.g., Jeremy Waldron, Does Law Promise Justice?, 17 GA. ST. U. L. REV. 759, 759
(2001); David Lyons, Obedience to Law, in READINGS IN THE PHILOSOPHY OF LAW 3, 4-6 (John
Arthur & William H. Shaw eds., 2d ed., 1993).
79 See supra notes 4-7 and accompanying text.
80 See Rawls, supra note 2, at 312 (“[I]n a state of near justice at least, there is normally a
duty (and for some also an obligation) to comply with unjust laws provided that they do not
exceed certain bounds of injustice”); Walzer, supra note 8, at 28 (“Residence in a democratic
state does, I think, generate a prima facie obligation to obey the laws of that state . . . .”).
81 Hart, supra note 77, at 108-13.
82 Id. at 112.
83 See id. at 113 (“[T]hough . . . a society may exhibit the tension . . . between those who
accept the rules and those who reject the rules except where fear of social pressure induces them
to conform, it is plain that the latter cannot be more than a minority . . . .”).
84 Id. at 114.
85 Id. at 114-16.
86 Lon L. Fuller, The Morality That Makes Law Possible, in READINGS IN THE PHILOSOPHY
OF LAW 118, 122 (John Arthur & William H. Shaw eds., 2d ed., 1993) (“The term ‘procedural’ is,
however, broadly appropriate as indicating that we are concerned, not with the substantive aims
2098
CARDOZO LAW REVIEW
[Vol. 28:5
are comprehensible, consistent, practicable, and stable; and these rules
must be administered as announced. Fuller elaborates on this last point
by explaining that the internal morality of law mandates “a substantive
accord between official action and enacted law.”87 Without these
qualities, the rule of law not only loses effectiveness but also fails at a
more essential level.88
Jeremy Waldron has described a more fluid set of secondary rules
of law.89 These principles, a cluster of ideas about governance, include
legal restraints on the authority of the state, legal equality (the idea that
no one is above the law), procedural due process, and relatively stable,
prospective rules.90
Waldron also advances the importance of
consistency and universalization (treating like cases alike) and a
commitment to elaborating reasons for decisions.91
The ideas of secondary rules and the internal morality of law help
establish that, for a citizen motivated to obey a primary rule out of
internal obligation, the authority of the rule arises either from
substantive agreement with that rule or out of acceptance of the rule’s
validity stemming from its creation in a manner prescribed by the
secondary rules or its fit with the internal morality of law.92
Citizens must obey the primary rules of obligation—the
substantive rules of the society—for the rule of law to exist.93 Public
officials, in stark contrast, must both obey the primary rules and abide
by the secondary rules or the internal morality of law: “a legal system
exists only where the officials orient themselves internally to the same
secondary rules, as a matter of common acceptance of the standards
embodied in those rules.”94
of legal rules, but with the ways in which a system of rules for governing human conduct must be
constructed and administered if it is to be efficacious and at the same time remain what it purports
to be . . . .”).
87 Id. at 122.
88 Id.
89 Jeremy Waldron, Legal and Political Philosophy, in THE OXFORD HANDBOOK OF
JURISPRUDENCE AND PHILOSOPHY OF LAW 352, 372-73 (Jules Coleman & Scott Shapiro eds.,
2002).
90 Id.
91 Waldron, supra note 78, at 775-77.
92 Ronald Dworkin, The Model of Rules, in READINGS IN THE PHILOSOPHY OF LAW 124, 127
(John Arthur & William H. Shaw eds., 2d ed., 1993); see also BICKEL, supra note 21, at 112
(describing the need for internal obligation arising out of substantive agreement and stating that
“the test of a legal order is its self-executing capacity, its moral authority”); Leslie Green, Law
and Obligation, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 514,
519-20 (Jules Coleman & Scott Shapiro eds., 2002) (examining the source of legitimacy, or “the
question of what justifies the duty to obey”).
93 Waldron, supra note 89, at 365 (quoting H.L.A. HART, THE CONCEPT OF LAW 116-17
(Joseph Raz & Penelope Bulloch eds. 1994)).
94 Id. (paraphrasing H.L.A. HART, THE CONCEPT OF LAW 116-17 (2d ed., Joseph Raz &
Penelope Bulloch eds. 1994)).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2099
III. THE PROBLEMS CONFRONTING CIVIL DISOBEDIENCE
Several problems confronting civil disobedience make a
reconciliation with the rule of law difficult, but critical—at least if one
wishes to preserve the important role and benefits offered by civil
disobedience. The first of these issues has coexisted with civil
disobedience since its development—namely the belief, held by many,
that nothing justifies disobedience to the laws. In contrast with external
opposition to civil disobedience, the other problems have arisen from
inside the movement itself and have grown more gradually. Foremost,
pressure for a relaxation of punishment for civil disobedience has
skewed the deterrent calculus. Next, protesters routinely use the
practice of indirect disobedience to pressure private parties into
changing their conduct rather than using protest directed at the
institutions of government or the public generally to produce political
change. This spurious practice constitutes coercion and resembles
direct action rather than civil disobedience. Finally, a number of public
officials claim that their defiance of the law constitutes civil
disobedience. These actions strike directly at foundational rule of law
norms dictating that laws must be administered consistently and that
public officials owe a different kind of fidelity to the law than normal
citizens. As it examines each of these problems, this section will
construct a set of conditions necessary to achieve reconciliation between
civil disobedience and the rule of law.
A.
Opposition to Civil Disobedience
Two distinct strands of thought animate opposition to civil
disobedience: the first focuses formally on the need for obedience to the
law, while the second concentrates consequentially on the dangers
attendant to civil disobedience.
The archetypical critic from the first camp was Supreme Court
Justice Abe Fortas, who argued that: “Each of us owes a duty of
obedience to law. This is a moral as well as a legal imperative.”95
Those who agree with Fortas dismiss the motives for civil disobedience
as irrelevant96 and view the practice as nothing but criminal conduct.97
95
96
Fortas, supra note 55, at 18.
Id. at 52 (“The motive of civil disobedience, whatever its type, does not confer immunity
for law violation.”).
97 CHARLES E. WHITTAKER & WILLIAM SLOAN COFFIN, JR., LAW, ORDER AND CIVIL
DISOBEDIENCE 1-2 (1967) (rejecting the terminology of civil disobedience and arguing that
2100
CARDOZO LAW REVIEW
[Vol. 28:5
In response to the premise that a stable and just system should permit
civil disobedience, these critics draw exactly the opposite conclusion
that “in a democratic state, with basically fair treatment of minorities
and with mass political participation, it is not justifiable to break the law
to effect social change.”98
Opponents of civil disobedience also catalog its consequential
perils. For instance, while its motives may lie in the hope for social
change, the enterprise of civil disobedience constitutes nothing more
than an effort by a small group to impose its view on the majority.99
This line of reasoning contends that civil disobedience employs
criminality to unseat democratically-chosen laws and policies.100
Moreover, civil disobedience supplants the validity of these laws with a
separate morality, rendering civil disobedience revolutionary in
character and, thus, more dangerous than ordinary crime.101 Essentially,
these critics view civil disobedience as coercive.102
Detractors further contend that civil disobedience encourages
protesters to think like mere subjects aggrieved by the sovereign rather
than as citizens with responsibility and opportunity for participation.103
Other critics explain that civil disobedience does not represent merely
formal law breaking but instead causes concrete injuries to individuals
disobedients commit nothing but ordinary violations of the criminal law); Allen, supra note 1, at
123 (explaining the argument that, if one believes that no difference exits “between the
conscientious law violator and the common criminal,” civil disobedience presents no “separate
and distinct issues” for criminal law).
98 Ledewitz, supra note 2, at 505 (“This was President Clinton’s message upon signing the
Clinic Act: ‘we must all agree that as a nation we must remain committed to the rule of law.’”).
99 Markovits, supra note 4, at 1898 (describing political disobedience as a “form of
oppression, in which protesters attempt improperly to impose their personal political preferences
upon others” which “is particularly salient when the political system in which disobedience
occurs, and that underlies the laws and policies that disobedient protest seeks to unseat, is
democratic”).
100 Id. (stating that “the oppression that political disobedience threatens to impose takes on a
familiar countermajoritarian form” and “in a democracy carries a taint of autocracy”). See also
WHITTAKER & COFFIN, supra note 97, at 6, 56 (arguing that civil disobedience constitutes a
coercive attempt to “substitute rule of force for rule by law”) (quoting Bell v. Maryland, 378 U.S.
226, 356 (1964) (Black, J., dissenting)).
101 Jerome B. King, Book Reviews, 86 HARV. L. REV. 468, 469 (1972) (reviewing CARL
COHEN, CIVIL DISOBEDIENCE: CONSCIENCE, TACTICS, AND THE LAW (1971) and other works)
(explicating the argument that “acts committed in the name of a morality allegedly higher than
simple law abidingness are essentially revolutionary, and therefore far more dangerous to society
than the garden variety of crime undertaken only for reasons of private advantage”).
102 Bickel, supra note 21, at 99 (explaining the conclusion that “[c]ivil disobedience is
ineluctably an attempt to coerce the legal order”); Ledewitz, supra note 2, at 508-09 (explaining
the line of criticism that evaluates civil disobedience as coercive and undemocratic); Lippman,
supra note 34, at 242 (explaining the criticism of civil disobedience as coercive, intimidating, and
undemocratic).
103 Herbert J. Storing, The Case Against Civil Disobedience, in ON CIVIL DISOBEDIENCE:
AMERICAN ESSAYS, OLD AND NEW 95, 117 (Robert A. Goldwin ed., 1968) (“Civil disobedience
is part of the subject’s view, as distinguished from the citizen’s view, of law and government.”).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2101
and long-term harm to society.104 Moreover, its opponents note that
civil disobedience as a form of political brinksmanship may provoke
escalation, violence, and a repressive response.105
Supporters of civil disobedience offer a rejoinder, at least to the
claim that civil disobedience fundamentally undermines the rule of law.
Succinctly, they contend that such a position “idolizes”106 the rule of
law, which provides a powerful neutral authority for resolving private
disputes, but does not hold with the same force when “one of the
disputants is the state.”107 Moreover, the response continues by noting
that the social fabric will not unravel just because of a diminution in the
rule of law, but will remain intact because social order arises out of
many institutions, not just law.108 Indeed, Martin Luther King, Jr.
contended that those devoted to “order” over “justice” pose the greatest
impediment to freedom.109
Prospects for Reconciliation
A stable reconciliation between civil disobedience and the rule of
law should not dismiss the critics’ arguments as the rejoinder does; it
should incorporate them, instead, into a new formulation. Accordingly,
a successful proposal must not attempt to remove civil disobedience
from the ambit of the criminal law, but instead must find an
accommodation within the legal structure. A resolution of the paradox
posed by civil disobedience must only minimally undermine the duty of
obligation. Further, reconciliation must promote the persuasive nature
104 WILLIAM SLOAN COFFIN, JR., & MORRIS I. LIEBMAN, CIVIL DISOBEDIENCE: AID OR
HINDRANCE TO JUSTICE? 16 (1972) (rejecting the claim that civil disobedience harms no one as
“untenable” and examining both immediate harm and secondary, long-term harms to social
order).
105 Bickel, supra note 21, at 119 (stating that “disobedience is attended by the overhanging
threat of anarchy”); Coffin & Liebman, supra note 104, at 23 (arguing that civil disobedience
constitutes “brinksmanship,” generates hostility, and poses a danger of violence); Ledewitz, supra
note 2, at 507-08 (explaining the “objection to civil disobedience as a form of protest” because “it
does or can lead to dire consequences, typically said to be violent protest or anarchy”); Markovits,
supra note 4, at 1898 (“Disobedience must always contend with the possibility that it will be met
with overwhelming repression or trigger a popular backlash against the very ends it seeks to
promote.”).
106 Zinn, supra note 28, at 23.
107 Bertrand Russell, Civil Disobedience and the Threat of Nuclear Warfare, in CIVIL
DISOBEDIENCE: THEORY AND PRACTICE 153, 155 (Hugo Adam Bedau ed., 1969).
108 HALL, supra note 2, at xi (“Social order may be seen as a product not of the rule of law
alone, but of the many institutions—economic, religious, and educational—which along with the
law constitute social life as we know it.”).
109 King, supra note 3, at 460 (“I have almost reached the regrettable conclusion that the
Negro’s great stumbling block in the stride toward freedom is not the White Citizen’s Council-er
or the Ku Klux Klanner, but the white moderate who is more devoted to “order” than to
justice . . . .”).
2102
CARDOZO LAW REVIEW
[Vol. 28:5
of civil disobedience and restrain its tendency toward coercion,
violence, and escalation. Additionally, such a rapprochement must
prevent harm to individuals and curtail long-term damage to society.
Finally, it must encourage the sort of participatory deliberation that
characterizes citizenship.
B.
Abolition of Punishment
From a number of directions, advocates of civil disobedience
advance arguments designed to let disobedients go unpunished. As one
commentator explains: “Much of this contemporary American civil
disobedience is distinguished by the fact that disobedients, rather than
following the traditional practice of entering a guilty plea and accepting
their punishment, claim that their actions are justified . . . .”110
Furthermore, the legal system itself appears reluctant to punish
disobedients to the full extent of the law.111 These forces combine to
dramatically alter the calculus of whether to engage in civil
disobedience and thus, have eroded the rule of law.112
Both Rawls and Ronald Dworkin call for official leniency.113
Joining their voices, a host of commentators argue that courts have
improperly prohibited disobedients from raising a necessity defense.114
110
111
Lippman, supra note 34, at 235.
Ledewitz, supra note 2, at 511 (“With regard to sit-ins, however, sanctions have been set so
low and enforced so weakly that sit-ins were not likely to be substantially deterred. . . . [T]he
sanctions for civil disobedience are insufficient to deter the conduct, we are treating a day in jail
as the price of the sit-in, rather than its punishment.”).
112 Ronald Dworkin notes, however, that not all law is enforced. Dworkin, supra note 22, at 7.
Indeed, at every stage of the process, the legal system lets violations of the law go unpunished,
either because of discretion or mere resource allocation. Ledewitz, supra note 2, at 510
(explaining resource allocation issues); id. at 524-25 (describing the “hidden response” to civil
disobedience in which law enforcement ignores protesters).
113 Rawls, supra note 2, at 339 (“Courts should take into account the civilly disobedient nature
of the protester’s act, and the fact that it is justifiable (or may seem so) by the political principles
underlying the constitution, and on these grounds reduce or in some cases suspend the legal
sanction.”); Dworkin, supra note 22, at 13 (arguing that civil disobedience “must count in
determining whether it is just and fair to be lenient to those who break what others think is the
law”).
114 Farrell, supra note 42, at 172-74 (calling for a version of the necessity defense); Lippman,
supra note 34, at 242 (advocating that disobedients deny guilt and assert a defense); Bauer &
Eckerstrom, supra note 2, at 1199-1200 (urging a reconsideration of judicial decisions prohibiting
the political necessity defense); Cavallaro, supra note 43, at 368-84 (arguing for a constitutional
right to present the necessity defense in civil disobedience cases); Barbara J. Katz, Comment,
Civil Disobedience and the First Amendment, 32 U.C.L.A. L. REV. 904, 916-17 (1985) (arguing
that “we as a society should consider making the defense of necessity more available to civil
disobedients”); Schulkind, supra note 43, at 80-81 (advocating that courts permit the necessity
defense in cases of indirect civil disobedience); see also Stephen J. McEwen, Jr., The Defense of
Justification and Its Use by the Protester: A Focus on Pennsylvania, 91 DICK. L. REV. 1, 16-34
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2103
Yet other writers suggest creation of a special civil disobedience
defense.115 Another group advances arguments for jury nullification in
civil disobedience cases.116
The motives and logic for these proposals vary. A number of
authors acknowledge that the central rationale lies with a desire by
disobedients to turn the courtroom into a soapbox and use the trial as
publicity for their cause.117 Others contend that a defense constitutes a
statement of defiance.118 Some authors suggest that disobedients care
more about this communicative component than they do about actually
winning acquittal.119 The value of independent validation by a jury also
appears to play a role.120
These proposals highlight the likelihood of judicial hostility121
(1986) (analyzing justification claims by protesters during the anti-war, anti-nuclear, and antiabortion movements).
115 Hall, supra note 2, at 147 (suggesting a “conscientious disobedience” defense); Loesch,
supra note 65, at 1109-10 (proposing the addition of a civil disobedience justification defense to
the Model Penal Code).
116 Boyle, supra note 44, at 6-7 (“If juries refuse to convict these protesters [against the
Reagan Administration’s policies in Central America and other alleged crimes under international
law], then it is obvious that the latter have committed no crimes.”); Alan W. Scheflin & Jon M.
Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165,
182-83 (1991) (advocating jury nullification instructions in civil disobedience cases). See also
HALL supra note 2, at 141-45 (explaining William Kunstler’s repeated urging of jury nullification
at trial in civil disobedience cases).
117 Ledewitz, supra note 2, at 543 (“The really important matter, from the point of view of the
protestor, is that one way or another some evidence be admitted that is critical of the policy that
was the object of the protest.”). See also Lippman, supra note 34, at 242-43 (stating that a
defense at trial allows the disobedient to “focus public attention” on the cause); Bauer &
Eckerstrom, supra note 22, at 1176 (“[T]he elements of the necessity defense provide an excellent
structure for publicizing and debating political issues in the judicial forum”); Cavallaro, supra
note 43, at 355 (“The necessity defense also allows civil disobedients to voice their reasons for
lawbreaking in a public forum. Even if convicted, the civil disobedient will have enjoyed the
opportunity to deliver a message to an audience which may not otherwise have received it”);
Schulkind, supra note 43, at 79 (explaining that a civil disobedience defendant “wishes to raise
only those defenses which publicly air the moral and political issues that inspired the civil
disobedience”).
118 Lippman, supra note 34, at 242 (advocating that disobedients deny guilt to register a
profound and deep cynicism concerning the government, and explaining that, by asserting a
defense, disobedients are “symbolically distancing themselves from the activities of the
government”) But cf. supra note 48 and accompanying text (explaining the argument that
accepting punishment signals defiance).
119 Loesch, supra note 65, at 1117-18 (arguing that the availability of a defense allows the
disobedient to choose whether to willingly accept guilt or assert the defense—regardless of its
chance of success—in order to “square their account with society, to tell a jury and the court why
they did what they did”); Schulkind, supra note 43, at 79 (explaining that for a civil disobedience
defendant “acquittal may be quite low on her list of priorities” compared to airing her
motivation).
120 Lippman, supra note 34, at 243 (explaining that submitting a defense to the jury allows the
disobedient to “obtain independent evaluation”).
121 Carter, supra note 11, at 111-14 (explaining that we should expect hostility to disobedience
in the courts).
2104
CARDOZO LAW REVIEW
[Vol. 28:5
toward disobedience on the issue of guilt. In an analog to the pressures
apparent under the Fourth Amendment’s exclusionary rules, courts
encounter a significant acquittal disincentive in civil disobedience
cases.122 The courts do not want to see the acquittal of obviously guilty
defendants.
Similarly, the proposals for the abolition of punishment emphasize
a sanction problem evident in civil disobedience cases. Historically, the
courts have sanctioned civil disobedience lightly.123 Indeed, this
phenomenon has raised theoretical concerns about the “proper use of
criminal law.”124 Normally, criminal law seeks the elimination of
conduct; low sanctions, in contrast, suggest that courts may view civil
disobedience as a “crime that has social utility.”125
The current situation leaves courts in a difficult position. Even
assuming appropriate judicial sympathy toward civil disobedience at
sentencing, the courts face significant acquittal disincentives and
simultaneously risk the inappropriate use of criminal law if they hand
out lower sanctions.
Furthermore, although the advocates of the various defenses claim
that their interest lies in allowing nothing more than a forum for the
disobedient to express the motivation for the illegal acts, the hydraulic
pressure of criminal litigation—especially if the defendant retains
counsel—will inevitably twist that idealistic impulse toward a naked
desire for acquittal.126 Such a shift contaminates civil disobedience by
introducing self-interest that conflicts with core philosophical
principles.
Both the availability of a justification defense and jury nullification
raise additional problems. The two proposals introduce political
argumentation into the courtroom.127 Moreover, the plans would
122 The availability of an expanded necessity defense opens the door to alarming arguments for
the expansion of civil disobedience claims—such as the never-published law review article
outlining a possible necessity defense for the murder of a physician who performs abortions. See
Mark Curriden, An Unusual Theory Tested and Rejected: Law Review Article, Withdrawn by
Author, Argues Killing of Abortionists Justified, ABA JOURNAL, Dec. 1994, at 26 (detailing the
decision by the author of the article, an attorney, to pull it from scheduled publication in the
Regent University Law Review after Paul Hill—accused and later convicted of killing a physician
(who performed abortions) and an escort—became his client).
123 Ledewitz, supra note 2, at 511.
124 Id. at 512.
125 Id.
126 Few advocates of civil disobedience candidly admit to this desire. But see BOYLE, supra
note 44, at 17 (attempting to convince defense attorneys to characterize their cases as “civil
resistance” in which, unlike with civil disobedience, the defendant enjoys a right to “receive the
most vigorous defense you can mount”); see Cavallaro, supra note 43, at 354-55 (“As such, the
necessity defense provides civil disobedients with a means of pleading a potentially complete
defense to their criminal actions without forcing them to compromise their values and beliefs.”).
127 See Susan B. Apel, Operation Rescue and the Necessity Defense: Beginning a Feminist
Deconstruction, 48 WASH. & LEE L. REV. 41, 46 (1991); Bauer & Eckerstrom, supra note 2, at
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2105
provide a whole new set of incentives for civil disobedience. By
converting the trial into a tool of publicity for the cause, these devices
would add to the list of reasons for committing civil disobedience and
would likely foment litigation.128
In other words, a dissident
contemplating civil disobedience in a world without the availability of
the necessity defense and nullification will have to weigh the merits and
communicative value only of the protest and punishment. In a universe
allowing the necessity defense and nullification, the potential
disobedient would see far more to gain from engaging in civil
disobedience because the likelihood of punishment declines and the
benefits of a trial increase.
A more theoretical problem with the necessity defense also
surfaces. Civil disobedience derives some of its force from the
shocking nature of the choice to defy the law; in contrast, the necessity
defense predicates itself on a need to violate the law.129 This shift
diminishes the moral and political significance of civil disobedience.
The most fundamental effect of the various proposals for
abolishing punishment is that they alter the civil disobedience calculus
and will likely lead to a dangerous proliferation of civil disobedience.130
The proposals add benefits to the act of civil disobedience: the use of
the trial as a platform and the prospect of a jury verdict vindicating the
views of the disobedient. Simultaneously, they reduce the costs by
lowering the prospect of punishment.131 By reducing the likelihood of
punishment, the proposals also diminish the extent to which civil
disobedience demonstrates fidelity to law and the plans undermine
obedience to the law.
Rule of law theory helps elucidate this final point.132 A society
needs citizens motivated by internal obedience (citizens who obey the
law because they accept it) rather than citizens motivated by external
1197.
128
129
130
See Apel, supra note 127, at 46.
See Bauer & Eckerstrom, supra note 2, at 1193.
Alexander Bickel admonishes that: “[C]ivil disobedience is habit-forming, and the habit it
forms is destructive of the legal order. Disobedience, even if legitimate in every other way, must
not be allowed to be endemic.” Bickel, supra note 21, at 119. Similarly, Gandhi warns of the
danger of too often indulging in civil disobedience: “We dare not pin our faith solely on civil
disobedience. It is like the use of a knife to be used most sparingly if at all. A man who cuts
away without ceasing cuts at the very root, and finds himself without the substance he was trying
to reach by cutting off the superficial hard crust.” Gandhi, supra note 35, at 173.
131 Hugo Bedau illustrates the danger of eliminating the prospect of punishment by explaining
that: “[E]very law could . . . have a rider to the effect that anyone who violates it on conscientious
grounds shall be exempt from prosecution and penalty. . . . The way in which such a provision
would tend to weaken habitual obedience of the law and thus create problems for the police and
the courts is obvious.” Bedau, supra note 2, at 71.
132 For further explanation of the rule of law terminology in this paragraph and the next, see
supra notes 81-93 and accompanying text.
2106
CARDOZO LAW REVIEW
[Vol. 28:5
obedience (citizens who obey only out of fear of sanction). Internal
obligation arises out of substantive agreement with the law or
acknowledged validity. A person who commits civil disobedience
forswears agreement with the law. But, by acceding to punishment, the
disobedient demonstrates a belief in the validity of the law.
Accordingly, a philosophy of civil disobedience that includes the
willing acceptance of punishment upholds internal obedience to the law.
In contrast, a philosophy of civil disobedience that seeks to avoid
punishment moves far in the other direction.133 The analysis begins
again with the manifest thought that a person who commits civil
disobedience disagrees with the law. Next, by seeking to avoid
punishment, the disobedient calls into question the validity of the law.
This step in the logic brings an end to internal obligation and shifts the
delicate balance in society toward external obligation. However, by
arguing for leniency or acquittal, the disobedient reduces or eliminates
external obligation. At the end of the process, all forms of obligation
have dissipated.
The secondary concepts of consistency and legal equality will help
illustrate this point in a more colloquial manner. These ideas mean that
the law should apply in the same way to everyone—that no one is above
the law. By deciding to break the law, disobedients already seem to
assert that they are above the law. This contention damages the rule of
law. By claiming that no punishment should apply to their illegality,
disobedients inflict a second, distinct blow to the rule of law.
Prospects for Reconciliation
Any attempt to reconcile civil disobedience and the rule of law
must take into account the powerful desire—evidenced by calls for
leniency, a civil disobedience version of the necessity defense, and
nullification—for some form of vindication or validation from the
justice system. But the solution must come without inculcating a
dangerous level of self-interest on the part of the disobedient. This
resolution must avoid the improper use of the courts. The plan for
bringing civil disobedience and the rule of law together needs to avoid
the acquittal disincentive by allowing the judicial system to address
civil disobedience without reference to the guilt versus innocence
divide. Ideally, the result will address the quandary of reduced
sanctions.
Most importantly, however, reconciliation between civil
133 This analysis calls into question not only the proposals for a civil disobedience necessity
defense and nullification, but also that line of civil disobedience theory that dismisses the
requirement of punishment. See supra notes 43-46 and accompanying text.
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2107
disobedience and the rule of law must restore the proper calculus and
prevent the destruction of obedience. The solution must not radically
diminish the costs of civil disobedience or introduce significant benefits
that shift the decision-making process.
The mechanism of
reconciliation has to preserve whatever can remain of internal obligation
after a citizen undertakes to commit civil disobedience—reconciliation
must powerfully signal the validity of the law. It must demonstrate that
disobedients are not above the law.
C.
Indirect Civil Disobedience
Indirect civil disobedience poses particular dangers to the rule of
law.134 Because it entails only a tenuous connection to injustice,
indirect disobedience takes on the character of simple illegal protest.135
No direct connection necessarily exists between the law broken and
injustice protested. This lack of connection serves to multiply the
possible instances of indirect civil disobedience.136 Any disfavored
legal principle or governmental policy becomes a potential target of
indirect civil disobedience. Further, although some components of civil
disobedience philosophy mandate a nexus between the protest and
injustice, indirect civil disobedience can transpire in a far greater
number of locations and forms than direct civil disobedience (which can
occur only in proximity to the unjust law itself). This multiplication
effect increases the prospects for social coercion. Indirect disobedients
may stage their protests in a manner that causes far greater social
disruption than direct civil disobedients.
Indirect disobedience seeks to bring attention to an injustice. In a
way, it constitutes a “form of publicity” for the cause.137 Successful
publicity, however, will attract imitators; and, in turn, it will lose its
134 See Allen, supra note 1, at 130 (explaining that indirect civil disobedience carries the
danger of “producing fundamental alterations in the traditional rationale and forms of civil
disobedience”). For a general description of indirect civil disobedience, see supra notes 57-63
and accompanying text.
135 Fortas, supra note 55, at 51 (stating that indirect civil disobedience constitutes a violation
of the law only as a “means of protest” and not for any other cognizable reason).
136 Zwiebach, supra note 63, at 188 (“The fear of [indirect disobedience] is largely based on
the fear of multiplying instances where disobedience is employed.”).
137 Fortas, supra note 55, at 51 (explaining that indirect civil disobedience seeks “to publicize
a protest and to bring pressure on the public or the government to accomplish the purposes which
have nothing to do with the law that is breached”); Singer, supra note 66, at 81 (stating that
indirect civil disobedience becomes “a form of publicity”); Teresa Godwin Phelps, No Place to
Go, No Story to Tell: The Missing Narratives of the Sanctuary Movement, 48 WASH. & LEE L.
REV. 123, 126 (1991) (explaining that with indirect civil disobedience “[t]he act of
lawbreaking . . . is incidental to the unjust law or practice; since its purpose is to call attention to
something, it explicitly depends on narrative”).
2108
CARDOZO LAW REVIEW
[Vol. 28:5
novelty and effectiveness.138
In response, attention-seeking
disobedients will increase the size or drama of their protests and a cycle
of escalation will ensue with a tendency toward confrontation and
violence.139
A metaphor may help convey the phenomenon:
Commentators have noted that civil disobedience, in general, constitutes
a viewpoint amplifier—a moral shout.140 As the escalation cycle
proceeds, the volume will increase, the public will become inured or
deaf to the noise, and disobedients will need to shout ever louder to be
heard.
The use of indirect disobedience against private parties, however,
constitutes the most worrisome aspect of the practice.141 Protest against
private parties under the mantle of civil disobedience occurs in several
forms. For example, protests against permissive laws, such as legal
abortion, have focused on those individuals availing themselves of
access to abortion;142 while protests against government policies, such
as allowing logging in a national forest, have concentrated on timber
companies.143 These acts of civil disobedience blur into direct action—
they look not toward a change in law or policy through the political
process, but instead seek to halt a disfavored practice by targeting those
engaged in it. Consequently, this kind of indirect civil disobedience
constitutes the coercion of individuals.144
Prospects for Reconciliation
Obviously, any reconciliation between civil disobedience and the
rule of law necessitates a resolution to the problem of indirect civil
disobedience. Nevertheless, because of philosophical emphasis on
indirect civil disobedience and the historical tradition of indirect civil
138 Singer, supra note 66, at 81 (explaining that indirect civil disobedience is likely to garner
imitators and lose its novelty such that its “scale and . . . nature will have to be escalated” and it
will tend toward violence).
139 Id.
140 See supra note 74.
141 Concededly, protests directed at private parties are not a problem unique to indirect civil
disobedience. See supra note 62.
142 See generally Apel, supra note 127 (describing protests against abortion).
143 See generally Kaarin L. Axelsen, Note, Problems of Punitive Damages for Political Protest
and Civil Disobedience, 25 ENVTL L. 495 (1995) (describing litigation over an Earth First!
protest against a timber company).
144 Allen, supra note 1, at 131 (explaining that indirect civil disobedience often becomes direct
action against “members of the public who are in no sense directly responsible for the conditions
complained of and who lack the capacity to remedy the wrongs that prompted the protest”); Apel,
supra note 127, at 50-65 (describing the harm caused by protests against abortion); Ledewitz,
supra note 2, at 510 (describing the harms caused by sit-ins to property, autonomy, the right to
exclude, and the freedom of movement); id. at 515-22 (describing the coercive character of
protests against abortion).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2109
disobedience, the solution does not lie with its elimination. A
successful proposal, however, must reduce or eradicate coercion, both at
the social and individual level. Indeed, a détente between civil
disobedience and the rule of law needs to prevent harm to private
parties to the extent possible. It must restrain indirect civil disobedience
so that it does not morph into direct action. Further, a resolution must
combat the multiplication and escalation problems attendant to indirect
civil disobedience.
D.
Civil Disobedience by Public Officials
Recently, in several prominent matters, public officials have
contended (or observers have suggested) that official acts of defiance
have constituted civil disobedience. For example, some have argued
that President Bush’s use of signing statements is a form of civil
disobedience.145 Others have argued that the decisions by the mayors of
San Francisco, California, and New Paltz Village, New York, to license
same-sex marriages amounted to civil disobedience.146
Former
Alabama Chief Justice Roy Moore asserted that he engaged in civil
disobedience when he defied a federal court order to remove a Ten
Commandments monument from the rotunda at the state Supreme
Court, a decision that eventually led to his removal as Chief Justice.147
And, some municipalities have contended that civil disobedience
supports their decisions to adopt resolutions refusing to allow local law
145 Dan Froomkin, Congress v. Bush, WASH. POST, July 25, 2006, available at 2006 WLNR
12916740 (quoting White House Press Secretary Tony Snow: “[S]igning statements . . . have
been cast as acts of civil disobedience, and they’re not. The President does not have the luxury of
practicing civil disobedience. The laws that have been enacted must be executed by the
government.”).
146 See Samuel P. Tepperman-Gelfant, Constitutional Conscience, Constitutional Capacity:
The Role of Local Governments in Protecting Individual Rights, 41 HARV. C.R.-C.L. L. REV. 219,
221-30 (2006) (examining the mayors’ decisions to permit same-sex marriage); Vikram David
Amar, Must California City Officials Follow Statutes They Believe to Be Unconstitutional?: More
on the San Francisco Gay Marriage Controversy, FINDLAW’S WRIT, Mar. 30, 2004,
http://writ.corporate.findlaw.com/amar/20040330.html (analyzing San Francisco’s Mayor Gavin
Newsom’s directive that the Clerk of San Francisco County issue same-sex marriage licenses);
Vikram David Amar, The California Constitution and Same Sex Marriage: Even If California’s
Anti-Gay-Marriage Statutes Violate the State Constitution, San Francisco Was Still Wrong Not to
Wait
for
the
Courts,
FINDLAW’S
WRIT,
Mar.
6,
2004,
http://writ.corporate.fondlaw.com/amar/20040305.html (same); Spitzer: Gay Marriage Not Legal
in NY, ASSOCIATED PRESS, Mar. 2, 2004 (reporting that New Paltz Village Mayor Jason West
faces nineteen criminal counts for performing marriages for same-sex couples).
147 See Anthony J. Sebok, The Controversy Over Alabama’s Ten Commandments Statue, and
the Nature of Justified Civil Disobedience, FINDLAW’S WRIT, Aug. 25, 2003,
http://writ.news.findlaw.com/sebok/20030825.html (explaining that then-Chief Justice Moore
contends he followed the teachings of Martin Luther King, Jr.).
2110
CARDOZO LAW REVIEW
[Vol. 28:5
enforcement to assist in enforcement of federal immigration and antiterrorism laws.148 Indeed, Judge Richard Posner contends that no
logical reason bars a public official from claiming civil disobedience for
morally-justified law-breaking.149
Although the arguments for official civil disobedience fail for a
number of philosophical reasons, it deserves note at this juncture that
not all justified, illegal acts constitute civil disobedience. The attempt
to cast official illegality as civil disobedience stands as a propagandistic
effort to occupy the moral high ground. Instead, a public official should
explain either the moral, pragmatic, or political reasons for defying the
law and seek vindication from our systems of accountability—the
democratic decision of the voters, prosecutorial discretion, and the
possibility of impeachment by the legislature. Attempts to allow civil
disobedience by public officials will ultimately undermine the integrity
of the doctrine and pose a dramatic threat to the rule of law.
Foremost, purported civil disobedience by public officials defies
the essential philosophy of civil disobedience. Civil disobedience
works to bring about change within the political system;150 but it
presupposes that the political system follows proper procedure, even if
occasionally it reaches the wrong result. For a political actor to violate
the duty, and oath, to uphold the law undermines the procedural validity
of the system.151 In essence, the claim reads: “I had to destroy the
political system to save it.” Where normal civil disobedience violates
the substantive law, putative civil disobedience by a public official
violates the substantive law and contravenes the structure of the
political system itself.
This same point flows from rule of law principles.152 The internal
morality of law dictates an accord between official action and enacted
law. The claim of civil disobedience by public officials attacks this
precept. Moreover, the assertion of civil disobedience by officials
makes the rules appear inconsistent because those charged with
enforcing them have decided to defy them. With the uniform
enforcement of the law and its consistency under suspicion, the rules of
148 See John W. Dean, Grassroots Opposition to Rights-Infringing Antiterrorism Tactics: Why
the ACLU’s Model Resolution Is Dangerous and Should Be Revised, FINDLAW’S WRIT, Sept. 12,
2003, http://writ.news.findlaw.com/dean/20030912.html.
149 RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL
EMERGENCY 85-86 (2006) (arguing that public officials could defy the positive law and authorize
(and, presumably, commit) torture of a terrorism suspect who threatened the use of a weapon of
mass destruction).
150 See supra notes 13-15 and accompanying text.
151 See Fortas, supra note 55, at 35 (explaining the duty of the state to defend its laws and
itself), 54-55 (stating that government exists subordinate to the law).
152 For further explanation of the rule of law terminology in this paragraph, see supra notes
84-91 and 94 and accompanying text.
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2111
recognition appear to suffer as well. Because public officials use their
governmental power to reach a result divergent from the law, it may
appear that they assert a de facto power to change the law—thus casting
the rules of change into doubt as well. Further, a claim to civil
disobedience by a public official undermines the special duty that
officials have to the secondary rules and to the internal morality of
law.153 In sum, official civil disobedience triggers a raft of dangers for
the rule of law far beyond those created by civil disobedience
undertaken by private citizens.
Additional arguments against official civil disobedience flow from
civil disobedience philosophy. Civil disobedience must distinguish
itself from direct action.154 Because public officials control the
apparatus of the state, their official acts constitute direct acts—resolving
a legal or policy problem—rather than symbolic ones designed to lead
the political system toward a democratic change in those laws or
policies. Phrased differently, official disobedience has overtones of
autocracy rather than democratic politics.155 Lastly, public officials will
face difficulty under a last resort requirement because they could always
resign.
Even if the foregoing objections were overcome, a number of more
prudential reasons militate against allowing civil disobedience by public
officials. Civil disobedience should direct the public’s attention to a
substantive disagreement, but official disobedience fails in this regard
because the discussion will sidetrack into debates about either
separation of powers or federalism. Furthermore, any discussion of
proper punishment will be complicated by examination of whether
impeachment constitutes the correct remedy, rather than criminal
sanction.156
Prospects for Reconciliation
The accord between civil disobedience and the rule of law simply
153 As Rawls explains, public officials (and other “more favored members of society”) have a
higher obligation (than other citizens) to uphold the legal system. See Rawls, supra note 2, at
330. Similarly, Professor Anthony Sebok explains that public officials have a “special obligation
to obey the law” and that “while they are in their jobs, they are duty bound—and oath bound—to
enforce the law.” See Sebok, supra note 147. Rule of law norms undergird the precept that
officials have obligations beyond those of ordinary citizens. See supra note 94 and
accompanying text. But cf. Robert M. Palumbos, Comment, Within Each Lawyer’s Conscience a
Touchstone: Law, Morality, and Attorney Civil Disobedience, 153 U. PA. L. REV. 1057, 1076
(2005) (stating, about Roy Moore’s case, “[s]urely this was a victory for the rule of law, not a
defeat”).
154 See supra notes 13, 141-144 and accompanying text.
155 See supra notes 99-102 and accompanying text.
156 Both the concerns over structural issues and appropriate sanctions implicate complications
for the rule of adjudication. See supra note 85 and accompanying text.
2112
CARDOZO LAW REVIEW
[Vol. 28:5
must prohibit claims of civil disobedience for official acts by public
officials. Because such claims are of relatively new origin, such a
blanket rule will not offend the civil disobedience tradition. Nor will it
disable public officials from participating in civil disobedience in their
personal capacities. Difficult questions may arise, however, about the
meaning of “public official.” The reconciliation effort must delineate
between those high-ranking public officials barred from claims of civil
disobedience and those public employees or quasi-officials who could
still avail themselves of the doctrine.
IV. GUILTY BUT CIVILLY DISOBEDIENT
A.
Impetus and Limits
This Article proposes a new verdict of Guilty But Civilly
Disobedient (GBCD) as a vehicle through which to reconcile civil
disobedience and the rule of law. The GBCD verdict is offered not only
with the hope that it will resolve the conflicts that have grown up
between civil disobedience and order, but also with the belief that the
proposal can stimulate new debate about the prospect of bringing civil
disobedience from the moral universe into the legal regime.157
This section of the Article does not proceed from the premise that
the precise terms of a doctrinal definition of civil disobedience can
supplant nuanced, conditioned, and context-dependent moral
reasoning.158 Instead, it argues that a GBCD verdict may help us clarify
the terms of the moral debate with marked societal benefits.159 The
157 Many thinkers have viewed law and morality as separate categories and have allowed the
moral discourse to dominate debate over civil disobedience. See Hall, supra note 2, at 53-54
(concluding that the “moral category will have to serve as the common denominator”). Excluding
moral reasoning from the law, however, does not necessarily mean that the law views morality as
better; on the contrary, rejecting moral arguments may mean that law views them as inherently
subjective and incapable of resolution-inferior. Olsen, supra note 48, at 960-61. Further, when
the law rejects moral reasoning it serves the interests of the status quo. Id. Legal evolution
occurs when the status quo, and the ossified, stagnating debate it embodies, gives way. See Ira
Mickenberg, A Pleasant Surprise: The Guilty But Mentally Ill Verdict Has Both Succeeded in Its
Own Right and Successfully Preserved the Role of the Insanity Defense, 55 U. CIN. L. REV. 943,
943, 949-50 (1987) (explaining the debate over the adoption of the Guilty But Mentally Ill verdict
and stating that “stagnation in the development of scholarly thought on the insanity issue has
severely retarded the evolution of the law” and that legal evolution has come slowly “because
neither side in the debate has been willing to look beyond the rigid confines of its own position”).
158 See Jeremy Waldron, On the Road: Good Samaritans and Compelling Duties, 40 SANTA
CLARA L. REV. 1053, 1072 (2000) (“The worry then is that, by enacting Good Samaritan statutes,
the legislature would distort our moral life by turning imperfect moral duties into perfect legal
duties . . . .”).
159 Rawls has made a similar point about the benefits of philosophical discourse on civil
disobedience by stating his hope that it will “clear[] our vision and [make] our considered
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2113
GBCD verdict does not purport to limit those circumstances under
which morality might justify, or even demand, illegal protest. In
distinction, it strives only to provide a heuristic device for reaching
some agreement about a particular form of illegal protest: civil
disobedience. The goal is to limit assertions of civil disobedience for
the purposes of preserving its special status as a socially-acceptable
form of illegal protest and protecting its beneficial role in society from
erosion.160 By defending the moral high ground of civil disobedience
from spurious claimants, the law can help to ensure its continued
existence as a safety valve drawing off the dissent before the pressure of
that disaffection flows toward revolution. Switching metaphors,
demarcating the borders of civil disobedience maintains its role as a
firebreak. Moral reasoning, because of its contingent nature, does a
poor job at demarking such boundaries; the law, on the other hand,
excels.
Law succeeds, not only because of its ability to draw fixed
distinctions, but also because of its educative capacity.161 Whatever the
chances of a legislature adopting the GBCD verdict, even debate over
the proposal would have salutary effects. Legal reasoning has the
capacity to balance competing irreconcilable moral visions. Law’s
clarity can liberate conduct held in check by moral ambiguity.162
This Article, however, does not hold out unrealistic hope for
law.163 Even a perfect definition of civil disobedience cannot fix
society’s flaws.164 Fixing and freezing a contentious issue in a legal
judgments more coherent” and “narrow disparity” among concerned citizens. Rawls, supra note
2, at 320. Similarly, Waldron has noted that, on some topics, law may rank as superior to
morality. Waldron, supra note 158, at 1072-73 (stating that “changes in circumstances [may]
make law and legal duty possible in a sphere previously governed only by morality” and “[t]here
may be areas where one of the proper functions of law is actually to perfect what, from the moral
point of view, are imperfect duties”).
160 See supra notes 64-72 and accompanying text.
161 See Sunstein, supra note 71, at 42-44 (describing law’s expressive function); Stephen J.
Morse, Diminished Rationality, Diminished Responsibility, 1 OHIO ST. J. CRIM. L. 289, 306
(2003) (stating that “the criminal law is in part a ‘teacher’ and an expression of shared moral
community sentiment”).
162 Cf. Judith A. McMorrow, Civil Disobedience and the Lawyer’s Obligation to the Law, 48
WASH. & LEE L. REV. 139, 160 (1991) (explaining ambiguity in the rules for attorney conduct
creates a “chilling effect” regarding civil disobedience).
163 Indeed, Rawls warns that: “We should not expect too much of a theory of civil
disobedience, even one framed for special circumstances. Precise principles that straightway
decide actual cases are clearly out of the question.” Rawls, supra note 2, at 319-20. Further,
Stephen Carter decries the “irritating insistence” that all rules should translate into legislation and
enforcement. Carter, supra note 11, at 55. Michael Walzer notes the danger that a narrow
definition of civil disobedience will create a slippery slope toward revolution for those whose
illegal protests do not conform. Walzer, supra note 8, at 25.
164 Indeed, many disobedients find their motivation for protest in a belief structure that
presupposes the fundamental inadequacy of the civic law. See, e.g., Romans 8 (THE MESSAGE:
THE BIBLE IN CONTEMPORARY LANGUAGE 2044 (Eugene H. Peterson trans. 2002)) (“In his Son,
2114
CARDOZO LAW REVIEW
[Vol. 28:5
doctrine risks truncating vibrant moral discourse.165 Further, even with
law’s ability to compromise, legislative decisions produce winners and
losers; and the law legitimates the victors to an extent that even those
who only marginally disagree appear defeated.166
Despite these dangers this Article contends that only by bringing
civil disobedience into the legal structure167 can society resolve the
conflict between the philosophy and the rule of law.168 Accordingly, the
GBCD verdict receives its inspiration from the idea of verdict that
allows the legal system to simultaneously and unambiguously address a
disobedient’s guilt and unusual moral responsibility.169
B.
The GBCD Verdict
Criminal Code § 100—Guilty But Civilly Disobedient
The jury may find the defendant Guilty But Civilly Disobedient if
the jury finds that the defendant acted: conscientiously, openly, and
respectfully. If the defendant is a public official and committed the
offense as an official act, the jury cannot find the defendant Guilty But
Civilly Disobedient.
“Conscientiously” means that the defendant committed the offense in
accord with a deeply-held belief that rendered a law or government
policy unjust.
Jesus, he personally took on the human condition, entered the disordered mess of struggling
humanity in order to set it right once and for all. The law code, weakened as it always was by
fractured human nature, could never have done that.”).
165 See Waldron, supra note 158, at 1077 (“Perhaps . . . law should refuse to enter a field
where moral controversy is raging.”).
166 See Olsen, supra note 48, at 950-53 (describing legitimation theory).
167 See HANNAH ARENDT, CRISES OF THE REPUBLIC 99 (1969) (explaining that, although the
difficulties of incorporating civil disobedience into the legal system “follow from the nature of
law in general,” it might be possible to “find a recognized niche for civil disobedience in our
institutions of government”); Martin, supra note 10, at 211 (proposing that governments can
“incorporate” civil disobedience “as a feature in their theoretic structure”).
168 Ledewitz, supra note 2, at 501 (advocating a debate over the parameters of acceptable civil
disobedience and stating “we should then be deciding what exceptions to toleration we want to
make, and why, and whether making exceptions is itself healthy and constitutional”); Loesch,
supra note 65, at 1070-71 (“The criminal justice system has responded inadequately to the moral
and political significance of civil disobedience in our society.”).
169 The Guilty But Mentally Ill verdict (GBMI) fits this model. Mickenberg, supra note 157,
at 988-89; Mark A. Woodmansee, The Guilty But Mentally Ill Verdict: Political Expedience at
the Expense of Moral Principle, 10 NOTRE DAME J.L. ETHICS & PUB. POL’Y 341, 352-53 (1996);
see also Morse, supra note 161 (proposing a “fourth verdict” of Guilty But Partially
Responsible). The GBMI verdict, however, has been widely reviled. Mickenberg, supra note
157, at 990; Christopher Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time
Should Not Have Come, 53 GEO. WASH. L. REV. 494, 505-17 (1985).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2115
“Openly” means that
(a) the defendant (or another person acting with the defendant)
provided notice of the offense to a relevant enforcement
authority in advance,
(b) the defendant committed the offense in the presence of a
relevant law enforcement authority, or
(c) the defendant (or another person acting with the defendant)
left information at the scene of the offense informing a relevant
law enforcement authority of the defendant’s identify.
“Respectfully” means that:
(a) if the defendant committed the offense in a location or
manner directed primarily at the institution of government
responsible for the unjust law or policy, the defendant acted:
(i) without violence (other than insignificant physical
contact),
(ii) without more than a minimum of physical force against
property not belonging to the defendant,
(iii) without more than a reasonable disruption to
government, and
(iv) without significant harm to a right or legally-protected
interest of another; or
(b) if the defendant committed the offense in a location or
manner directed primarily at the public at large, the defendant
acted:
(i) without violence (other than insignificant physical
contact),
(ii) without more than a minimum of physical force against
property not belonging to the defendant,
(iii) without more than a minimum of disruption to
government, and
(iv) without more than a minimum of harm to a right or
legally-protected interest of another; or
(c) if the defendant committed the offense in a location or
manner directed in significant part at a private party, the
defendant did not act respectfully.
“In a Location or Manner Directed Primarily at the Public at
Large” includes acts committed on private property belonging to
the defendant (or another person acting with the defendant) and
acts committed on property belonging to quasi-public
institutions, public accommodations, and public property not
related to the institution of government responsible for the law or
2116
CARDOZO LAW REVIEW
[Vol. 28:5
policy.
“Public Official” means an elected or politically-appointed official.
C.
The Logic of the GBCD Verdict
The critical question is whether the GBCD verdict achieves the
objective of reconciling the philosophy of civil disobedience with both
the rule of law and the criminal law. Foremost, it brings civil
disobedience directly into the heartland of criminal doctrine. Rather
than dealing with civil disobedience through prosecutorial or judicial
discretion, or consigning it to a possible iteration of the necessity
defense, or attempting to win jury nullification, the GBCD proposal
builds civil disobedience into the form of the verdict itself. A plain
verdict of Guilty, in effect, becomes Guilty Not Civilly Disobedient.
Essentially, under the GBCD verdict, civil disobedience applies, if
at all, to distinguish one kind of guilt from another, not to distinguish
guilt from innocence.170 This attribute accomplishes significant heavy
lifting. It should satisfy the critics who contend that civil disobedience
constitutes criminal conduct. The verdict eliminates the acquittal
disincentive: simply put, a successful claim of civil disobedience leads
to a conviction. Moreover, GBCD addresses the sanction problem by
allowing juries and courts to recognize officially the special status of
civil disobedience without having to do so in a hidden or backdoor
manner.
Even more importantly, the GBCD verdict restores the proper
calculus by providing that successful claims of civil disobedience do not
alleviate punishment. At the same time, the verdict offers disobedients
a formal validation, if not a complete vindication.171 Although some
170 In essence, the GBCD verdict resembles an excuse that diminishes culpability rather than a
justification that creates an exception to crime and eliminates culpability. See Larry Alexander,
The Philosophy of Criminal Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND
PHILOSOPHY OF LAW 815, 842-44 (Jules Coleman & Scott Shapiro eds., 2002) (explaining that
“when one commits what is otherwise a crime in circumstances in which a justification is present,
one has committed no wrong and caused no prohibited result” and stating that an excuse
“undermine[s] culpability . . . by showing that the actor’s personal reasons for acting . . . diminish
his culpability . . .”); cf. R.J. Gerber, Is the Insanity Test Insane?, in READINGS IN THE
PHILOSOPHY OF LAW 383, 393 (John Arthur & William H. Shaw eds., 2d ed., 1993) (explaining
the GBMI verdict as an attempt to bifurcate consideration of guilt and innocence from questions
of proper disposition, leading to the treatment of insanity as a mitigating factor in determining the
proper punishment or sanction). But see Slobogin, supra note 169, at 518 (explaining that the
GBMI verdict “is not a finding of diminished responsibility; thus, the judge may impose any
sentence authorized by law for the crime involved”).
171 See Bauer & Eckerstrom, supra note 2, at 1185 (explaining that an official validation in
court “plays a significant role in remedying individual political discouragement” because it
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2117
disobedients might refuse the verdict, lest it co-opt their ideals, the
presence of the verdict should encourage disobedients to function within
the system, rather than attempting to manipulate the rules to their
advantage. In other words, although the irresolvable problem of
disobedience to the law remains, the GBCD verdict strengthens fidelity
to the law and commitment to the rule of law by providing that civil
disobedience leads only toward guilt (and punishment) and by providing
incentive for disobedients to view the legal system in a positive light.
Furthermore, because a successful civil disobedience claim merits only
a guilty verdict, prosecutors would have less reason to oppose those
claims and the trial would not become a publicity theater for dissidents.
The entire enterprise of the GBCD verdict encourages participatory
deliberation. Instead of allowing individuals and groups to formulate
their own ad hoc versions of civil disobedience that serve parochial
interests, the existence of the verdict directs would-be disobedients to
read the statute and to contemplate whether their planned conduct falls
within the terms of the verdict.
The specific terms of the GBCD verdict, rather than its general
structure, help it achieve other goals. The proposal would reduce the
tendency toward coercion by significantly limiting the conduct that
constitutes civil disobedience. The verdict bans protests directed at
private parties. It limits those protests affecting the general public by
restricting the disruption and harm they can cause. Furthermore, it
requires that even those protests directed primarily at the responsible
institution of government may result only in reasonable disruption and
must occur without significant harm to the interests of other individuals.
These limitations prevent protesters from shutting down the government
or intimidating the population under the guise of civil disobedience.
They work together to retard escalating disobedience by simply capping
its upper boundary.
By limiting the permissible illegal conduct constituting civil
disobedience, the verdict directs disobedients toward formal or
symbolic protest and away from coercion or direct action. Protest
cannot generally block the implementation of law or halt private
conduct. Further, by directing protesters toward the responsible
institutions of government and away from private parties, the verdict
controls indirect civil disobedience and neutralizes its tendency to
multiply the targets of protest. Similarly, by pushing protest toward the
responsible institutions of government, the verdict encourages a nexus
between the illegal acts and the unjust law or policy.
The verdict deals with the problem of official disobedience by
“conveys the symbolic message that our society highly values political input and gives special
attention to apparent systemic failures in our form of democratic government”).
2118
CARDOZO LAW REVIEW
[Vol. 28:5
simply banning it, but leaves open the possibility of disobedience by
public officials in their personal capacities172 and disobedience by lowlevel government personnel.
Several other features of the verdict merit comment. The verdict
strives toward objectivity rather than subjectivity. The verdict does not
require the jury to poll their consciences as both the necessity defense
and nullification do.173 Phrased differently, the GBCD verdict pushes
the jury to look predominantly outward at the defendant’s conduct,
rather than inward at its own values.
The GBCD verdict reduces civil disobedience down to three
elements: conscientiousness, openness, and respectfulness. Although
superficially it may appear that the verdict disregards civil disobedience
philosophy, the GBCD proposal represents instead an attempt to
legalize and operationalize a moral debate. As such, some of the
features of the verdict serve multiple purposes. In other regards, the
verdict reaches the judgment that, although some matters may have
moral importance, they have significantly less legal importance and
present irresolvable practical dilemmas for courtroom adjudication.
Stated differently, the GBCD verdict represents a legal definition of
civil disobedience designed to guide judicial resolution of cases rather
than a moral definition intended to channel contemplation and guide
personal decision-making.
Indeed, the GBCD verdict avoids several components of civil
disobedience philosophy that are not amenable to legal proof. The
verdict steers clear of the debate over conscientiousness174 by requiring
no more than a “deeply-held belief.” It does not require a particular
source of belief or examine the belief’s validity. Such inquiries would
return to the jury to subjective questions and lead to inconsistent results.
The proposed verdict does not mandate that the disobedient undertake
illegal protest only as a last resort or after due deliberation. For
example, many protesters will join in mass demonstrations without full
knowledge of the history of the issue. Their ability to prevail on a
deliberation element would depend not on the character of their actions,
but instead on inherently subjective matters unlikely to translate
successfully into reliable evidence.
Although the GBCD verdict does not explicitly require that the
protest have a political goal, it does mandate—by demanding
conscientiousness—a connection between the deeply-held belief and a
172 But cf. McMorrow, supra note 162, at 153 (arguing that “a lawyer does not avoid the
problem of special responsibility simply by asserting publicly that the act of civil disobedience is
being done as a citizen, not a lawyer”).
173 See Apel, supra note 127, at 67 (explaining that the “necessity defense is not content
neutral; it is content specific”); Schulkind, supra note 43, at 84.
174 See supra notes 16-22 and accompanying text.
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2119
law or governmental policy. As such, it prohibits civil disobedience
motivated by non-political impulses.175 Nevertheless, this element of
the definition provides only a nominal limitation focused on the
motivation for the protest as opposed to an account of the protest’s goal.
Because of the relationship between the method of the protest and
its goal, the GBCD verdict again addresses the motive for the protest
indirectly as it controls the protest’s conduct through the requirement of
respectfulness. In other words, the respectfulness element serves as
both a control on the means of the protest and as a double check on its
political ends. That component of the verdict calibrates the level of
disruption and harm based on the target of the protest. By pushing
disobedients away from protests directed at private parties and toward
the responsible institution of government, the GBCD verdict funnels
civil disobedience toward protests with a link to politics. It achieves
indirectly through locus what the philosophy of civil disobedience
establishes through subjective intent.
Although the verdict contains no reference to acceptance of
punishment, its very existence denotes that civil disobedience leads to a
guilty verdict. Therefore, the verdict attempts to inculcate at a systemic
level a belief that civil disobedience demands acceptance of
punishment.
A few small details in the verdict also deserve mention. The
conscientious element requires conduct “in accord” with a belief. As
such it links the belief not just to the assessment of injustice but also to
the protest conduct. Conceivably, a defendant could commit an offense
that conforms to the verdict’s standards except for the fact that the
disobedient’s own belief system condemns such conduct. Next, the
openness element allows surrogates to contact law enforcement. This
provision intends to achieve nothing more than to accommodate the
reality of mass protests. On another front, the verdict struggles over the
semantic difficulty of describing protests that may not occur in physical
space (for example, “cyberprotests”) and, therefore, uses the
construction “location or manner.” Further, in order to reduce the
coercive character of civil disobedience, the verdict strives to address
not just the location of the protest, but its target by using the “directed
at” phrase. Finally, the definition of “public at large” leaves many
matters open, but does include protests occurring on property owned by
175 Accordingly, illegal acts of art or performance—such as Phillipe Petit’s 1974 tightrope
walk between the twin towers of the World Trade Center—would not constitute civil
disobedience absent an accompanying political motive. Cf. Dan Barry, Free Speech? Looks
More Like Free Fall, N.Y. TIMES, Nov. 4, 2006, at B1 (describing Petit’s tightrope walk, climber
George Willig’s 1977 ascent of the south tower, and a more recent attempt to parachute off the
Empire State building).
2120
CARDOZO LAW REVIEW
[Vol. 28:5
a disobedient176 and protests occurring at public accommodations177 and
quasi-public entities. Consequently, protest may occur at lunch
counters. Although a long tradition recognizes civil disobedience in
such places, mere history would make a poor rationale. A principled
rationale is that those places are generally open to the public.
D.
Accessorizing the GBCD Verdict
In order to function fully in the criminal justice system, the GBCD
verdict may need some additional components. Presumably, in many
instances, a defendant will seek a GBCD verdict and the prosecution
will not contest. Accordingly, it would serve the interest of judicial
economy to allow disobedients to enter GBCD as a plea at first
appearance—rather than just permitting them to plead guilty or not
guilty. Alternately, the parties could request a bench trial and stipulate
to the evidence and request the GBCD verdict.
Disputes may arise about the admissibility of motive testimony.
To forestall those debates, a rule of evidence expressly allowing motive
testimony on components of the GBCD verdict may need to accompany
the verdict.178 Conversely, some defendants may still attempt to present
evidence of the civilly disobedient motives despite not seeking the
GBCD verdict, perhaps by raising the necessity defense. To account for
this possibility, the statute could limit expressly the admissibility of that
evidence to cases in which either the prosecution or the defense seeks
the verdict, or it could expressly bar the application of the necessity
defense in civil disobedience cases.
The verdict alone may not provide enough incentive for
disobedients. Additionally, critics may condemn it for seeming to
reduce the level of guilt without any relationship to the official sanction
for the offense—thus misleading the jury.179 Moreover, as a matter of
176 See, e.g., Monica Davey, Defying Law, a Foie Gras Feast in Chicago, N.Y. TIMES, Aug.
23, 2006, at A14 (describing civil disobedience by restaurateurs in Chicago who served foie gras
in their establishments to protest the city’s ban on the dish).
177 See, e.g., Julie Hilden, Breaking the Law to Help Enforce It? The Student Who Put
Boxcutters on Planes, FINDLAW’S WRIT, Oct. 28, 2003, http://writ.news.findlaw.com/hilden/
20031028.html (describing the case of Nathaniel Heatwole, who—to illustrate flaws in airline
security—placed bags containing boxcutters and fake plastic explosive on two Southwest Airline
planes along with a note identifying himself).
178 See Loesch, supra note 65, at 1102 (“If it is true that motive is the primary characteristic
that distinguishes civil disobedients from criminals, then a bar on admission of motive testimony
precludes civil disobedients from making the very arguments with which the community,
represented by the jury, should be concerned.”), 1110-11 (proposing a motive amendment to the
Federal Rules of Evidence).
179 Cf. Slobogin, supra note 169, at 518 (criticizing the GBMI verdict because it “results
neither in acquittal nor reduction in the grade of offense . . . [n]or is sentence length affected by
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2121
principle, some jurisdictions may believe that civil disobedience does
not merit the same punishment as self-interested crime. Further,
conviction for certain offenses may expose the disobedient to the
application of a penalty enhancement, which could add an inappropriate
additional sanction given the nature of the conduct and the purpose of
the enhancement.180 And, for practical and economic reasons, it may
not make sense to sentence disobedients identically with common
criminals. For all these reasons, the GBCD verdict could—by statute—
lead to a reduced sentence181 or block the application of sentence
enhancements.
Perhaps the most fruitful avenue for additional legislation lies in
the field of collateral consequences. In recognition of the difference
between civil disobedience and ordinary crime, it might make sense to
suspend some otherwise normal secondary effects of a conviction upon
issuance of a GBCD verdict. For example, a jurisdiction could decide
that a GBCD conviction does not lead to felony disenfranchisement
even though an ordinary conviction would. Jurisdictions may also wish
to adjust the treatment of GBCD convictions under their recidivism
statutes.182
Finally, criminal convictions often have more distant civil law
ramifications. They affect professional discipline within quasi-publiclylicensed groups,183 government contracting and hiring, security
clearance and background check procedures, and a host of private
employment decisions. Some jurisdictions may wish to specify
permissible and impermissible uses of GBCD convictions in these areas
the verdict, because the verdict is not a finding of diminished responsibility; thus, the judge may
impose any sentence authorized by law for the crime involved”); Woodmansee, supra note 169,
at 370-73 (criticizing the GBMI verdict because it purports to assess reduced culpability but
provides full punishment, thus undermining the central premise of criminal punishment theory).
180 See Jacobs, supra note 34, at 188-93 (providing examples of civil disobedience that would
expose defendants to penalty enhancements), 237-58 (arguing that penalty enhancements should
not apply with full force to civil disobedience); cf. Whitehead, supra note 65, at 103 (arguing that
penalty enhancements may function “not to punish the lawbreaking, but to destroy the protest
itself”).
181 Cf. Morse, supra note 161, at 303 (proposing, as part of a new verdict of Guilty But
Partially Responsible, a legislatively “fixed sentence reduction” or a “punishment discount” and
suggesting the possibility that these mechanisms could lessen the sentence in a manner “inversely
related to the seriousness of the crime”).
182 But cf. Tom Jarrell, Confessions of a Two-Time Draft Card Burner, in CIVIL
DISOBEDIENCE: THEORY AND PRACTICE 187, 193 (Hugo Adam Bedau ed., 1969) (“I am now
guilty of five violations of the Selective Service laws . . . . I intend to continue accumulating
violations. . . . When they prosecute me for one transgression, they must prosecute me for all, or
be guilty themselves of negligence and complicity.”).
183 See McMorrow, supra note 162, at 151-55 (considering the appropriate treatment of civil
disobedience during attorney discipline and weighing how to deal with repeat offenders);
Palumbos, supra note 153, at 1094-95 (proposing limits on professional discipline for attorneys
who engage in civil disobedience).
2122
CARDOZO LAW REVIEW
[Vol. 28:5
as well.184
E.
Potential Criticisms
In contrast to the optimistic prospects for the GBCD verdict
detailed above, a number of potential criticisms also loom large. For
instance, detractors may point out that the verdict offers too much
incentive to disobedients. By validating their conduct, it removes the
stigma from the guilty verdict.185 Accordingly, a would-be disobedient
contemplating the effects of the verdict might decide that it imposes no
reputation costs, diminishes social opprobrium, and brings
admiration.186 Under this view, the GBCD verdict skews the civil
disobedience calculus in the wrong direction. The bite of this criticism
depends enormously on the approach to sentencing under the GBCD
verdict and the collateral consequence that flow from it.
Another potential criticism focuses on whether the GBCD verdict
will destabilize criminal adjudication by leading to an increase in trials,
show trials, jury confusion, and a loss of public approval.187 Although
the verdict does politicize the process somewhat, it seems unlikely that
it would propagate litigation or create a circus atmosphere. Intuitively,
one would expect prosecutors to offer GBCD pleas to disobedients. If a
defendant refused the offer of a plea, the prosecution would be no worse
off than they are today. Indeed, even if a prosecutor elects to go to trial,
rather than drop the charges, it seems unlikely that the case would be as
intense because, with the GBCD verdict on the table, there is little
evidence the defendant could offer that would lead to acquittal.
Consequently, the prosecution would have less incentive to contest
whatever evidence the disobedient presented. Indeed, a GBCD system
should have the result opposite of the one feared: it should increase the
number of convictions without trial, streamline those trials that do
occur, and improve public perception of the disposition of civil
184 See, e.g., David Benjamin Oppenheimer, Comment, McDonnell Douglas Corp. v. Green
Revisited: Why Non-Violent Civil Disobedience Should Be Protected from Retaliation by Title
VII, 34 COLUM. HUM. RTS. L. REV. 635 (2003).
185 Cf. Morse, supra note 161, at 304 (addressing the stigma reduction caused by Guilty But
verdicts).
186 See Sunstein, supra note 71, at 46 (analyzing the reputational costs and benefits—hatred
and ostracism versus admiration—for would-be disobedients).
187 See Hall, supra note 2, at 149-50 (expressing concern over the resolution of political
questions in court); Loesch, supra note 65, at 1111-15 (describing fears that civil disobedience
trials will result in chaos, the politicization of the courts, and the degeneration of the jury system);
cf. Morse, supra note 161, at 304 (explaining concerns that Guilty But verdicts “would
compromise the efficiency and integrity of criminal trials”).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2123
disobedience cases.188
As to jury confusion, the GBCD verdict does involve the jury in
the determination of a matter somewhat attenuated from guilt or
innocence (at least for those cases that go to a jury).189 On the other
hand, the verdict does not ask the jury to weigh the strength of the case
for civil disobedience or the injustice of a law or policy, as would the
necessity defense or arguments for jury nullification.190 It asks the jury
only to evaluate whether the defendant practiced authentic civil
disobedience, not whether the defendant correctly decided to engage in
civil disobedience.
A trenchant criticism arises concerning resources. Obtaining even
a GBCD plea would eat up scarce prosecutorial resources, not to
mention the cost of actually imprisoning or even monitoring those
convicted.191 Because of the availability of the GBCD verdict, any
disobedient brought into the system would have some incentive to
obtain a GBCD conviction, rather than hope for release from custody
and charges. Accordingly, law enforcement might address the problem
at the front end, by simply not arresting or charging civilly disobedient
protesters. If it came to pass, this development would increase the
problem of drastically diminished sanctions for disobedients by
exacerbating the “hidden response” to civil disobedience.192
Finally, cynical critics may point out the impossibly idealistic
nature of the GBCD verdict. They might contend that the proposal is all
too sanguine for cooperation between law enforcement and protesters,
especially given the historical and recent mistreatment of protesters by
the police.193
188 Cf. Mickenberg, supra note 157, at 989 (explaining that the enactment of the GBMI verdict
led to reduced public perception of circus-like insanity trials, an increase in the number of
insanity cases resolved without, and an increase in the number of insanity verdicts reached by
plea or bench trial with stipulated evidence).
189 Cf. id. at 991 (explaining criticism that the GBMI verdict causes jury confusion and
unprincipled jury compromise); Morse, supra note 161, at 299 n.23 (criticizing the GBMI verdict
because it improperly involves the jury in “diagnostic conclusions totally unrelated to
culpability”).
190 See Bauer & Eckerstrom, supra note 2, at 1197-98 (describing concerns that juries will
struggle in political necessity defense cases).
191 Cf. Morse, supra note 161, at 304-05 (explaining the resource costs of administering a
Guilty But proposal).
192 The “hidden response” refers to the off-the-books decisions of law enforcement to ignore
disobedient protesters. Ledewitz, supra note 2, at 524-25.
193 See, e.g., Christopher Dunn, Essay, Balancing the Right to Protest in the Aftermath of
September 11, 40 HARV. C.R.-C.L. L. REV. 327, 335-36, 347 (2005) (describing the prolonged
detention and interrogation of protesters by the New York City police).
2124
CARDOZO LAW REVIEW
F.
1.
[Vol. 28:5
Loose Ends
Civil Law and Civil Disobedience
Considering the effort expended to bring civil disobedience into
the criminal law, some may ponder the proper place of civil
disobedience in the civil law. Such concerns have a relatively recent
provenance because at the time the seminal civil disobedience literature
appeared, civil disobedience seemed to involve civil law disputes only
rarely.194 In contrast, today the legal landscape is legion with
confrontations between civil disobedience and civil law.195
This Article proceeds with the general instinct that the civil law—
because of its focus on compensation and remedy, rather than
punishment—serves powerfully to retard the coercive temptations of
civil disobedience. Therefore, civil disobedience should emphatically
not receive special treatment in this realm. On the other hand,
reconciliation may be needed where the civil law functions like the
criminal law, rather than in its normal capacity. Accordingly, an
accommodation between civil disobedience and punitive damages may
be in order.196 Similarly, where civil law seeks to eliminate conduct (as
criminal law does through its moral force and through deterrence)
through injunctions, some special rules might be needed.197 And, where
the judicial power imposes quasi-punishment, as it does with contempt,
some adjustments to account for civil disobedience might benefit
society.198 Conversely, where the criminal law serves the compensatory
194 See Hall, supra note 2, at 25 (writing in 1971 and stating that civil disobedience “hardly
ever [entails] violations of the civil law”).
195 See Ledewitz, supra note 2, at 546-69 (writing in 1995 and detailing multiple civil
regulatory regimes, including state injunction, state civil liability, and federal civil liability).
196 See Jacobs, supra note 34, at 256 (describing the proper balance between punitive damages
and civil disobedience); Axelsen, supra note 143, at 502-511 (describing problems arising with
the application of punitive damages to civil disobedience cases and offering solutions).
197 See Ledewitz supra note 2, at 551-53, 569 (explaining the problem of injunctions in civil
disobedience cases); see generally Carolyn Grose, Note, “Put Your Body on the Line”: Civil
Disobedience and Injunctions, 59 BROOK. L. REV. 1497 (1994) (analyzing injunctions against
civil disobedience).
198 See generally Doug Rendleman, Disobedience and Coercive Contempt Confinement: The
Terminally Stubborn Contemnor, 48 WASH. & LEE L. REV. 185 (1991) (analyzing contempt
citations in civil disobedience cases); Julie Hilden, When Is Nonviolent Civil Disobedience
Justified? The Case of Judith Miller, FINDLAW’S WRIT, July 19, 2005,
http://writ.news.findlaw.com/hilden/20050719.html (examining the appropriateness of civil
disobedience claims in the case of Judith Miller, the New York Times reporter who refused to
comply with a grand jury subpoena during the investigation of Bush Administration leaks about
CIA officer Valerie Plame); Louis Klarevas, Jailing Judith Miller: Why the Media Shouldn’t Be
So Quick to Defend Her, And Why a Number of These Defenses Are Troubling, FINDLAW’S
WRIT, July 8, 2005, http://writ.lp.findlaw.com/colb/20030730.html (same).
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2125
interests of civil law, as it does through restitution, additional standards
may help. Because most of these matters have been fully treated
already, they lie beyond the scope of this Article.
The prevalence of civil disobedience claims by pubic officials
raises the question of whether non-criminal impeachment proceedings
constitute the proper response. Because of the inherently political
nature of impeachment, however, the question does not seem to merit or
need special treatment.
2.
Quasi-Public Officials and Related Issues
The GBCD verdict leaves open the possibility that low-level public
officials might engage in civil disobedience through official acts. This
position leaves unresolved the question of whether certain other quasipublic officials should be banned from committing civil disobedience
and whether certain other official acts should fall outside the ambit of
the doctrine. The quintessential case is that of lawyers. Their status as
officers of the court means that their acts of civil disobedience pose a
particular danger to the rule of law.199 The questions of whether society
should allow attorneys to engage in civil disobedience, how attorneys
should advise and represent clients in civil disobedience matters, and
how professional discipline should handle attorneys who commit civil
disobedience have all been well-addressed elsewhere200 and, thus, fall
beyond the scope of this Article.
Several other situations may require attention, however. For
example, officially-licensed professionals (such as pharmacists opposed
to abortion but asked to dispense the morning-after pill)201 and nonofficials given official legal power (such as ministers who perform
marriages)202 have raised questions concerning civil disobedience.
199 McMorrow, supra note 162, at 147 (“Logic and intuition tell us that danger exists if
society, in effect, institutionalizes civil disobedience, particularly when conducted by law’s own
agents—the lawyers.”).
200 See generally id.; Palumbos, supra note 153; see also Sherry F. Colb, Why Lynne Stewart,
Attorney for a Terrorist, Is No Heroine: Crossing the Line Between Advocate and Accomplice,
FINDLAW’S WRIT, July 30, 2003, http://writ.news.findlaw.com/colb/20030730.html (describing
the case of attorney Lynne Stewart, who violated special administrative measures limiting
attorney speech during the trial of Sheikh Omar Abdel Rahman in association with the 1993
World Trade Center bombing).
201 See Bruce Japsen, RX-Filling Mandate Backed by AMA: Contraceptive Denial Prompts
Resolution, CHI. TRIB., June 21, 2005 (explaining that pharmacists have raised conscientious
objections to dispensing morning-after contraceptives and that legislatures have responded with
legislation).
202 See Alan Cooperman, Charges in Same-Sex Nuptials, WASH. POST, Mar. 16, 2004, at A4
(explaining the prosecution of two Unitarian Universalist ministers who performed same-sex
marriage ceremonies in Ulster County, New York).
2126
CARDOZO LAW REVIEW
[Vol. 28:5
Assuming these situations meet the other elements of the GBCD test,
the public official bar would not apply because neither pharmacists nor
ministers are elected or politically-appointed public officials. However,
a proliferation of such claims may push the public toward a
reconsideration of whether citizens given special power or protection by
the state may claim civil disobedience for their “official” actions
without too much damage to the rule of law.
Further, under the GBCD verdict, society might indulge an official
act of civil disobedience by a low-level public official that takes on the
appearance of whistle-blowing, but reject other civil disobedience
claims by such actors.203 For example, Judge Posner has suggested that
it would constitute civil disobedience for a government official to
torture a terrorism suspect.204 Similarly, Professor Martin D. Carcieri
has argued that professors (some of whom, such as Carcieri himself, are
public employees, if not officers) could claim civil disobedience if they
believe that affirmative action is immoral, and, to compensate for its
unjust effects, skewed grades or recommendation letters.205 Although
both of these proposals would probably fail the GBCD test because of
their harm to others, they highlight the pressure that putative official
acts of civil disobedience committed by low-level officials or
employees would pose to the structure of the GBCD verdict.
3.
Corporate Matters
Several interesting civil disobedience issues arise at the
intersection with corporate law. First, could a corporation commit civil
disobedience? Imagine that an environmental group, incorporated as a
non-profit entity, undertakes to trespass at the legislature to protest poor
water pollution laws. In addition to charging the individual protesters,
could the prosecutor charge the group itself?206 Analytically this
203 For example, librarians who contested the validity of the Patriot Act could have couched
their claim as provisional disobedience, but would have faced a different choice had the courts
upheld the statute or had Congress not amended the relevant provisions. See Doe v. Gonzales,
449 F.3d 415, 418 (2d Cir. 2006).
204 POSNER, supra 149, at 85-86; see also Gross, supra note 50, at 1519-20 (advocating an
absolute ban on torture coupled with official disobedience).
205 Martin D. Carcieri, Grutter v. Bollinger and Civil Disobedience, 31 U. DAYTON L. REV.
345, 367-78 (2006). But see Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallick, &
Michael Murphy, Affirming Michigan’s Action: The Michigan Journal of Race & Law’s
Response to Dr. Carcieri’s “Grutter v. Bollinger and Civil Disobedience”, 31 U. DAYTON L.
REV. 381, 399-401 (2006) (critiquing Carcieri).
206 It appears that only one such case has ever been brought—a recent prosecution of
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2127
dilemma is no different from the normal position of a corporation
charged with a traditional crime. Unless the First Amendment prevents
such a prosecution in a civil disobedience case on the grounds that
charging the corporation presents a cognizable “chilling effect” not
present in the prosecution of individuals, the result should be the same
as under normal criminal law. Concomitantly, no logical reason blocks
a corporation from seeking the GBCD verdict. Further, depending on
the collateral consequences of conviction and the treatment of GBCD
convictions, the special verdict could make a major difference in
retaining tax-free status or other regards. The only problem that might
arise in civil disobedience matters is that registered entities typically
incorporate to “engage in any lawful purpose.” Accordingly, the
corporation would need to violate its own charter to commit civil
disobedience—but, again, a parallel concern arises under normal
criminal law. Moreover, the corporation’s decision to violate its own
charter could be understood as an act of indirect civil disobedience.
Next, if a corporation can commit civil disobedience, are there
special concerns about corporate officers? Should the GBCD verdict
treat official acts by corporate officers in a manner parallel to the
treatment of public officers? At least two permutations of the problem
produce straightforward results. If a corporation decides to engage in
civil disobedience and a corporate officer morally agrees with the
decision and participates, then the GBCD verdict should apply without
difficulty. If, in contrast, a corporation decides to engage in civil
disobedience and a corporate officer morally disagrees with the decision
but nevertheless participates (perhaps out of employment obligations),
then the verdict should block a claim of civil disobedience by the officer
because the officer did not act conscientiously, in accord with a deeplyheld belief.
The difficult case arises if a corporation does not engage in civil
disobedience but a corporate officer commits civil disobedience within
the course and scope of employment (but not an act that constitutes a
corporate decision). Is this corporate officer banned from claiming civil
disobedience because the officer defied both the law and the
corporation? This raises a concern analogous to the foregoing analysis
of public officials. Is there a set of secondary rules or an internal
morality of corporate governance, which the corporate official must
obey, such that the official’s violation of that duty makes a claim of
Greenpeace that ended with the judge dismissing the case for insufficient evidence. See United
States v. Greenpeace, Inc., 314 F. Supp. 2d 1252 (S.D. Fla. 2004) (pretrial rulings); Jay Weaver,
Greenpeace Wins U.S. Case, MIAMI HERALD, May 20, 2004, at 1B (detailing the dismissal);
Adam Liptak, Typical Greenpeace Protest Leads to an Unusual Prosecution, N. Y. TIMES, Oct.
11, 2003, at A9 (explaining the initiation of the lawsuit and noting that Greenpeace potentially
faced loss of its tax exempt status, fines, and the imposition of an IRS reporting requirement).
2128
CARDOZO LAW REVIEW
[Vol. 28:5
civil disobedience inappropriate? For two reasons, no bar on civil
disobedience should apply. First, even if corporate law embodies
similar secondary obligations, they do not carry the same rule of law
implications for society as a whole. Thus, their violation does not pose
a special danger to social order. Second, this situation appears to be
another instance in which civil law remedies would provide the
appropriate solution—the officer might face civil action from the
corporation for damaging its reputation. Accordingly, rather than
addressing the problem by barring the renegade officer from seeking the
GBCD verdict, it makes sense to look elsewhere for a solution.
Finally, should the GBCD verdict allow disobedients to employ
civil disobedience to protest corporate policies in addition to
government policies? Michael Walzer has proposed a theory of
“corporate civil disobedience” in which employees are morally justified
in committing illegal protests against their employer.207 Should the
GBCD verdict expand Walzer’s idea to allow disobedience by citizens
generally directed at corporations? The verdict could do so by
distinguishing between different types of private parties, and providing
greater protection to natural people than to artificial entities. Perhaps,
the verdict could treat artificial entities as components of the public at
large, entitled only to the same protection as public accommodations.
Any attempt to craft such a proposal would require careful attention to
the danger that civil disobedience against corporations could turn
coercive, even if corporations have civil law remedies and deep-pocket
litigation resources at their disposal.
V. CIVIL DISOBEDIENCE AND CRIMINAL PUNISHMENT THEORY
Criminal punishment rests on the concept that criminal conduct
causes harm.208 This Article posits that society should accommodate
civil disobedience because of its benefits, but that society must punish
civil disobedience to protect the rule of law. That basic incongruity
seems to leave society at an impasse. A comprehensive attempt to
reconcile civil disobedience and the rule of law, therefore, must include
successful harmonization between civil disobedience and the theories of
criminal punishment.
Retributive theory seeks to punish wrongdoers “with a severity
corresponding with the moral gravity of their deed.”209 Conventional
207
208
Walzer, supra note 8, at 24-45.
Alexander, supra note 170, at 851 (citing JOEL FEINBERG, 1 THE MORAL LIMITS OF THE
CRIMINAL LAW: HARM TO OTHERS (1984)).
209 Richard B. Brandt, The Utilitarian Theory of Criminal Punishment, in READINGS IN THE
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2129
wisdom holds that civil disobedience, because it lacks evil motive and
results in no personal gain, merits little punishment in a retributive
system.210 Instead, the dilemma identified by conventional wisdom
differs little from the constant challenge for retribution—the proper
measurement of negative desert.211
In the case of civil disobedience, analysis begins with the
distinction between malum in se (an offense because of inherent evil)
and malum prohibitum (an offense only because of positive law). A
disobedient morally justifies the illegal protest and does not believe that
the act constitutes malum in se; but, the disobedient knows that the act
constitutes malum prohibitum. Accordingly, the question becomes
whether any moral harm flows from such a violation. As explained
previously, civil disobedience threatens to unravel obedience to the law.
As a threat to social order, and as malum prohibitum, civil disobedience
constitutes moral harm.
Another line of reasoning reaches a similar result. Conceive of
disobedients as free-riders. They know that their acts will not tip the
stable and nearly just system into chaos. They take advantage of the
fact that the rest of society obeys. The moral gravity of their conduct
lies in their willingness to free ride—they have caused an unfair
distribution of the burden of obedience. 212 They, therefore, deserve
punishment.
Utilitarian theory emphasizes deterrence, rehabilitation, and
incapacitation.213
The classic critique of punishment for civil
disobedience is that it achieves no deterrent effect because disobedients
have such a powerful motive to offend.214 While punishing civil
disobedience may not have a specific deterrent effect on the individual
disobedient, it does have a general deterrent effect on society.215 We
punish trespass to ensure that all would-be trespassers hesitate. If we
punish even those who commit trespass as part of civil disobedience, it
sends a strong deterrent message to those who might contemplate the
PHILOSOPHY OF LAW 315, 319 (2d ed., John Arthur & William H. Shaw eds., 1993).
210 Loesch, supra note 65, at 1102 (“A civil disobedient is not a proper candidate for
retribution.”).
211 Alexander, supra note 170, at 816-17.
212 See Herbert Morris, Persons and Punishment, in READINGS IN THE PHILOSOPHY OF LAW
321, 322-23 (John Arthur & William H. Shaw eds., 2d ed., 1993) (explaining that punishment
ensures that those who obey will not have to assume an unfair portion of the burden of
compliance).
213 Brandt, supra note 209, at 316.
214 Loesch, supra note 65, at 1103; see Brandt, supra note 209, at 317 (explaining that Jeremy
Bentham argued that punishment is ineffective if “the motivation to commit the offense was so
strong that no threat of law could prevent the crime”).
215 See Brandt, supra note 208, at 317 (explaining that uniform punishment improves general
deterrence because “we could get a more strongly deterrent effect if everyone knew that all
behavior of a certain sort would be punished, irrespective of” motive).
2130
CARDOZO LAW REVIEW
[Vol. 28:5
offense for selfish reasons. Furthermore, the argument that deterrence
fails misperceives the thought process that undergirds civil
disobedience. Simplistically put, conscientious deliberation should
cause people to hesitate about committing an illegal protest over a
minor unfairness and only enter into disobedience for a grave injustice.
If both protests involve trespass, punishment for trespass will help
people assess the difference. Such contemplation should steer some
away from protest and, thus, serve a deterrent function.
Almost universally, writers believe that rehabilitation of
disobedients makes no sense.216 Rehabilitation takes on aspects of
therapy because it presupposes that society can treat and change the
offender. Rehabilitation cannot work on disobedients because they
believe they acted correctly and do not wish to change.217 Because
disobedients act out of a belief that many in society may share, society
might not even want them to change.
On the other hand, rehabilitation also takes on aspects of dialogue
requiring more than passivity on the part of the offender. As a form of
moral education, rehabilitation will alter an offender’s views only if the
offender is sympathetic to the state, which is not the feeling
stereotypical offenders harbor toward the government.218 Disobedients,
however, are that rare group of offenders with a particularly strong
attachment to the state—or, at least, the political process. Indeed, they
commit their acts in order to engage in political discourse.
Disobedients, therefore, appear to qualify as candidates for a novel
approach to rehabilitation. “Reintegrative shaming” sets out to achieve
moral change by bringing the offender and victim together to reach a
decision on how to deal with the aftermath of the crime.219 Such an
engagement is exactly what disobedients hope for of course; they hope
to convince the “victim” to change rather than to be morally educated
themselves. Nevertheless, because disobedients desire engagement with
society more than conventional offenders, they may fit productively—at
least, in this limited regard—within the rehabilitation framework.
Threat theory is one theory of punishment that meshes comfortably
with civil disobedience.220 This approach to understanding punishment
justifies sanctions on the ground that the offender failed to heed an
216
217
See, e.g., Loesch, supra note 65, at 1103.
Cf. Morris, supra note 212, at 327 (explaining that “[i]f someone believes that he has done
something right, and if he protests being treated and changed, the protest will itself be regarded as
a sign of some pathological condition”).
218 David Dolinko, Book Review, 55 J. LEG. EDUC. 401, 405 (reviewing DEIRDRE GOLASH,
THE CASE AGAINST PUNISHMENT: RETRIBUTION, PREVENTION, AND THE LAW (1995)) (quoting
GOLASH at 132)
219 Id. at 406.
220 Alexander, supra note 170, at 821.
2007]
GUILTY BUT CIVILLY DISOBEDIENT
2131
announced warning.221 Indeed, under this line of reasoning, the
punishment may well exceed the harm inflicted,222 as it arguably does
with civil disobedience.
Finally, therapeutic jurisprudence offers a theory of punishment
that takes many aspects of society’s response to civil disobedience into
account. Therapeutic jurisprudence explains the ways in which rules
and procedures affect the mental and physical health of the parties.223
Other authors have explained the potential therapeutic effects of civil
disobedience itself.224 The question is whether these therapeutic effects
extend to punishment as well. Arguably, they do. Punishment for civil
disobedience arguably empowers because it implies that the offender
has the resources to endure sanction and the courage to withstand it.225
Moreover, if disobedients wish to engage in political dialogue with the
rest of society they must do so from a position of moral high ground.
By accepting punishment, arguably, they purge themselves of the guilt
of having broken the law and can return to the public debate without
others feeling that they unfairly gained seats at the table. Further, it
seems plausible that the GBCD verdict itself would have therapeutic
effects because, instead of embodying the “condemnation and
stigmatization”226 attached to other Guilty But verdicts, GBCD
represents a validation.
CONCLUSION
Civil disobedience holds enormous potential benefit for society
and, if unrestricted, terrific threat. Moral philosophy carries little
capacity for checking spurious claims to civil disobedience or for
221
222
223
224
Id.
Id. at 821-22.
Smith, supra note 2, at 105-06.
DiSalvo, supra note 9, at 222 (explaining the therapeutic dynamics of civil disobedience as
inducing those who witness the suffering of disobedients to inquire into their cause and develop a
sympathetic reaction that leads to a conversion experience and cures the underlying social
injustice); Smith, supra note 2, at 128-32 (explaining the therapeutic effects of civil disobedience
as involving a purge of guilt by disobedients for having participated as a citizen in an immoral
law, self-affirmation as they assert their disagreement with that law, empowerment as they take
action that dignifies their cause and community, improved identification with those who suffer
the protested injustice, and unburdening of frustration and emotion).
225 Fromm, supra note 69, at 97 (“In order to disobey, one must have the courage . . . .”);
Levine, supra note 48, at 377 (explaining that disobedients “can thus identify themselves, not as
desperate revolutionaries, but, as people who are able to make the type of decisions about
imprisonment that, in other contexts, wealthy actors can make about their willingness to pay
financial costs”).
226 Mickenberg, supra note 157, at 979 (describing the unappreciated effect on a person
convicted under a mental health verdict).
2132
CARDOZO LAW REVIEW
[Vol. 28:5
restraining conduct. The law, however, has the capacity to channel
conduct and shift attitudes toward authentic civil disobedience. While
public debate alone could convince dissidents to eschew false acts of
civil disobedience and, thus, reduce problematic protests, the gains
would be short-lived. Because civil disobedience has been an enduring
feature on our political landscape, the problem demands a more lasting
solution. The GBCD verdict represents a durable instrument for
safeguarding society and defending the rule of law from the potential
dangers of civil disobedience.
The idea that bringing civil disobedience into the realm of law
presents a paradox of “legal illegality” proceeds from a starting point in
moral philosophy. Beginning, however, from a starting point in the law,
no such paradox exists. The law knows well how to deal with criminal
conduct, and the criminal law regularly distinguishes among different
levels of culpability for the same crime. The proposed GBCD verdict
represents no more that the application of these normal modalities of
criminal law to the problem of civil disobedience.