Problems of punitive damages for political protest and civil disobedience.

"The rights protected by the First Amendment are of profound importance to our society. Free speech is a transcendent value in that other values and rights are subordinated. In effecting the primacy of the First Amendment [there is al preference for errors made in favor of free speech."(1)

I. Introduction II. Summary of the Case Ill. United States Constitution First Amendment Analysis IV. Oregon Constitutional Analysis V. The Problem of Punitive damages and Expressive Conduct

A. Punitive Damages and Juror Discretion

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

I. Introduction

The Oregon Supreme Court recently upheld a punitive damage award for trespass stemming from an environmental protest.(2) Although the law currently permits punitive damages for trespass, this Note argues that an instruction that allows the jury to consider motives and beliefs in assessing punitive damages for civil disobedience violates both the United States and Oregon Constitutions. This Note further argues that, as a matter of policy, courts should not allow punitive damages in cases of civil disobedience.

The freedoms guaranteed by the First Amendment of the United States Constitution(3) are vital to our society(4) and of paramount importance. Courts often protect freedom of expression(5) over other interests,(6) and the right to dissent and protest is inherent in the First Amendment's guarantees.(7)

However, the right to protest is not absolute.(8) When "mixed conduct"(9) infringes upon other important individual rights or state interests, the government may restrict the means used to express ideas, although it may not restrict ideas themselves. Thus, protesters who trespass on private or restricted property are liable for the conduct that constitutes trespass even though the protestor combined the trespass with expression.(10)

Nonetheless, those committed to an unpopular or little-known message may use trespass or other minor violations of the law to draw attention to their message.(11) Several well-known movements have successfully used this type of activity,(12) which is better known as "civil disobedience."(13) Activists employ civil disobedience in the environmental context as well.(14) Although civil disobedience is not a protected means of expression under the First Amendment or the Oregon Constitution, it is inherently expressive conduct.(15)

The Oregon Supreme Court recently upheld a punitive damage award for trespass against a group of environmental protesters engaged in civil disobedience. This case, Huffman & Wright Logging Co. v. Wade(16) (Huffman & Wright), illustrates some of the problems of awarding punitive damages in this context, particularly in terms of jury instructions. This Note analyzes Huffman & Wright under the First Amendment and the Oregon Constitution. It argues that although criminal sanctions and compensatory civil damages are appropriate(17) when protesters engage in nonviolent civil disobedience or violate trespass or similar laws, the law must be sensitive to the potential impact of punitive damages on protected expression. A court must instruct the jury that it may not consider the content of defendant's expression or the motives and beliefs behind it in assessing punitive damages. Finally, because of the history of civil disobedience in United States politics and the difficulty of separating conduct from protected expression in this context, this Note questions the propriety of awarding punitive damages at all in civil disobedience cases.

Section II summarizes the Huffman & Wright decision. Sections III and IV analyze the decision under, respectively, the First Amendment and the Oregon Constitution. Section IV discusses some problems and dangers of punitive damages in the area of civil disobedience. Section V suggests that punitive damages should not be awarded in cases of civil disobedience. This Note concludes that under the guarantees of both the First Amendment of the United States Constitution and the Oregon Constitution courts must employ a sensitive jury instruction on punitive damages when expression and unlawful conduct are intertwined.

Il. Summary of the Case

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

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

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

III. United States Constitution First Amendment Analysis

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

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

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

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

interest; if the governmental interest is unrelated to the suppression

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

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

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

A generally applicable trespass law passes the O'Brien test even when applied to trespassers who are engaged in expression.(51) A trespass statute is within governmental powers to regulate conduct that infringes on other people's rights,(52) and it furthers the important governmental interest in protecting private property.(53) The protection of private property is unrelated to the suppression of free expression because it applies to all trespassers regardless of expressive activity or purpose. Such a statute does not restrict First Amendment freedoms any more than necessary to further this interest.

The Supreme Court's analysis in another demonstration case, Clark v. Community For Creative Non-Violence (CCNV),(54) Illuminates some First Amendment issues in Huffman & Wright. The demonstrators in CCAW had a permit to hold a round-the-clock demonstration in Lafayette Park in Washington D.C. so that they could draw attention to the plight of the homeless. They sought permission to sleep in the tents that they had erected for the demonstration, and when the Park Service denied permission,(55) the demonstrators challenged the denial as a violation of their First Amendment rights. The demonstrators argued that sleeping in the tents was expressive conduct, and if they could not sleep in the tents or prepare meals, the effectiveness of their demonstration would be diminished.(56) The demonstrators argued that the regulation, as applied to them, impermissibly infringed on their rights. The Supreme Court assumed that sleeping was expressive conduct meriting some First Amendment protection,(57) but held that the government may regulate such symbolic expression if it may regulate the conduct itself consistent with the O'Brien test.(58) The regulation was allowed even though the sleeping ban might limit the effectiveness of the demonstration. The Court did not judge the validity of regulations solely in reference to the specific situation.(59) The ban on camping was valid, even as applied to these demonstrators, because it was narrowly tailored to serve the Park Services' interest in maintaining and protecting the park.(60)

Although the demonstration in Huffman & Wright differed in many ways from CCNV,(61) the CCAW decision illustrates the important point that the scope of First Amendment rights is not expanded simply because the message will otherwise be less effective. So, although the Huffman Wright demonstrators' argued that they felt their actions were justified as a realistic way to have their message heard,(62) their rationale could not confer First Amendment protection on otherwise unprotected and unlawful conduct.

Because the First Amendment does not preclude application of a criminal trespass statute or other valid regulation against persons engaged in expressive activity, the question raised by Huffman & Wright is whether or why punitive damages may be imposed in civil actions for the same conduct. "[P]unitive damages [are] akin to the imposition of criminal responsibility because, where punitive damages `beyond any actual injury are allowable, the plaintiff collects them as a form of public punishment."(63) Punitive damages are also thought to deter people from "violating the rights of others."(64) When activity implicates the First Amendment, punitive damages are allowed if the government can constitutionally regulate late the activity.(65) There is a notable exception in some cases involving "pure speech,"(66) but punitive damages are available for conduct that can be regulated, such as trespass. Additionally, the Supreme Court recently affirmed that conduct involving expressive elements can be subject to enhanced penalties in the criminal context in cases where the defendant's beliefs or motivation cause special and distinct harms apart from the message conveyed.(67)

IV. Oregon Constitutional Analysis

The Oregon Constitution's freedom of expression provision is worded differently from its federal counterpart,(68) and Oregon's courts have interpreted it to provide greater protection in some situations. Oregon's Constitution prohibits punitive damages for speech, but accompanying tortious conduct is not protected. Oregon's Supreme Court developed a standard for punitive damages in torts involving expression,(69) but the Huffman & Wright defendants were unsuccessful in raising it as a defense.

In Wheeler v. Green,(70) the Oregon Supreme Court interpreted article 1, section 8 of the Oregon Constitution,(71) together with section 10,(72) to permit only compensatory damages in defamation cases.(73) Recognizing that defamation is "an abuse of the right of free expression for which a person is to be held responsible under the provisions of article 1, section 8,"(74) the court denied punitive damages because of concern about the effect of limiting expression.(75)

In Hall v. The May Department Stores,(76) the court extended Wheeler to the tort of intentional infliction of severe emotional distress,(77) refusing to allow punitive damages where the tort is committed purely by speech.(78) The court clarified the distinction between conduct and speech in this context in Lewis v. Oregon Beauty Supply Co.,(79) a case involving intentional interference with an employment contract.(80) The defendant in Oregon Beauty Supply engaged in both tortious expression and tortious conduct.(81) Defendant did not request a jury instruction limiting punitive damages to the noncommunicative conduct,(82) and, because several of his non-expressive actions would support punitive damages, the court upheld the award.(83) Thus, the lesson from Oregon Beauty Supply is that the Oregon Constitution does not shield otherwise tortious conduct accompanied by expression from punitive damages; a defendant who wants to protect the expressive component from punitive damages must request a jury instruction to that effect.(84)

The Huffman & Wright decision used a similar analysis for trespass accompanied by expression. The court stated that, while the tort of trespass "cannot readily be committed by speech,"(85) article I, section 8 protects the accompanying expression from punitive damages if the defendant requests an appropriate limiting instruction.(86) Because the Huffman & Wright demonstrators viewed the entire course of conduct as "expressive" they did not request such an instruction.(87) So, as in Oregon Beauty Supply, because the defendants' conduct of intentional trespass could itself support punitive damages, the court upheld the award.

The Oregon Supreme Court's analysis mistakenly assumes that expression and conduct are somehow separable in demonstrations involving trespass.(88) The notion that the content of the message is separable from the means used to convey it is questionable at best.(89) Experience tells us that much meaning may be bound up in conduct,(90) and the law recognizes this as well.(91) Also, the court's punitive damages instruction illustrates problems of punitive damages in general.(92) Both of these issues are developed further below.

V. The Problem of Punitive Damages and Expressive Conduct

Jurors are given much discretion in awarding punitive damages for misconduct. This discretion is troublesome in the civil disobedience context because of the risk that jurors may consider protected expression in arriving at the award.

A. Punitive Damages and Juror Discretion

Over its history the availability of punitive damages has received much criticism.(93) Proponents rationalize punitive damages as a form of punishment, as a deterrent to conduct that violates the rights of others, and as a "bounty" to "encourage[] private lawsuits seeking to assert legal rights."(94) Punitive damages are assessed as punishment in addition to any compensatory damages that may be awarded; they are not necessary to make the plaintiff "whole."(95) Judges and commentators often compare the damages to criminal sanctions,(96) but "their imposition is unaccompanied by the types of safeguards present in criminal proceedings."(97) Punitive damages often depend upon "the caprice and prejudice of jurors."(98) Juries may use punitive damages to punish unpopular defendants(99) because an award of punitive damages is up to jury discretion.(100) This problem is compounded by the fact that "juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the harm caused."(101)

B. Problems with Punitive Damages for Civil Disobedience

The above issues are especially critical in sensitive areas involving desirable constitutionally protected conduct, such as free expression. Negative effects, including the "chilling of desirable conduct," likely outweigh any positive deterrent effect of punitive damages.(102) The Oregon Supreme Court in Huffman & Wright found that defendants' concerns regarding punitive damages were speculative,(103) and refused to scrutinize the jury's punitive damage award for consideration of improper factors because defendants did not request the appropriate limiting instruction separating their expressive activities from their trespassory acts.(104) However, the majority's argument overlooks a fundamental problem, which the dissent raised,(105) with the punitive damage instruction given by the trial court.(106) This instruction expressly allowed the jury to consider the defendants' protected expression in assessing damages for the trespassory conduct.(107)

In his dissent, Justice Unis provided five ways that the jury instruction allowed consideration of the protected expression. In deciding whether to award punitive damages at all, the jury could use its discretion and evaluate the "importance to society in deterring similar misconduct."(108) This invited the jury to consider the purpose of the trespass and the message behind it to determine whether, in their opinion, society would be better off without it.(109) The jury could also consider protected expression in assessing the amount of punitive damages to award.(110) Because the jury could consider the character of the conduct, the instruction invited the jury to look at the "content, motivation, or legitimacy of defendants' message."(111) In considering defendants' motives and the sum of money required to deter such conduct in the future, they could evaluate both the message defendants' sought to convey through their conduct and the strength of defendants' commitment to that message.(112) Thus, the punitive damage instruction allowed the jury to consider defendants' constitutionally protected motives and beliefs.

Although only briefly discussed in the majority opinion, the court apparently reasoned that even if the instruction allowed the jury to consider motive and beliefs in assessing punitive damages for otherwise unlawful conduct, this form of indirect regulation of expression was consistent with the First Amendment under Wisconsin V. Mitchell.(113) In Mitchell, the Supreme Court upheld a Wisconsin "hate-crime" statute providing enhanced criminal penalties when a defendant intentionally selects a victim based on race.(114) Defendant argued that the statute violated his First Amendment rights because, although it punished otherwise criminal conduct, it provided a greater penalty for bias-motivated conduct than for other similar conduct.(115) The Court found that "motive plays the same role under the Wisconsin statute as it does under the federal and state antidiscrimination laws" that the court had previously upheld as constitutional.(116) Additionally, and relevant to the Huffman & Wright discussion, the Court stated that although the statute singles out bias-motivated conduct, such treatment was sufficiently justified by an interest unrelated to the biases themselves. Citing evidence that bias-motivated conduct "is thought to inflict greater societal and individual harm" than comparable conduct which is not so motivated,(117) the court found the state's interest in preventing these additional harms was adequate to support the enhancement provision.(118) Thus, enhanced penalties which look to motive or beliefs are consistent with the First Amendment where conduct which arguably expresses those beliefs causes distinct or special harm.

However, the Huffman & Wright situation does not implicate the above justification for enhancement of penalties for conduct based on the defendant's motives or beliefs. The court stated that "defendants' conduct ... produced a special cognizable harm (an interference with plaintiffs possessory interest in its property), distinct from any communicative impact."(119) This statement misapplies Mitchell. The U.S. Supreme Court upheld Wisconsin's bias-crime statute partially because bias-crimes were shown to be likely to produce harms additional to those produced in similar crimes not so motivated.(120) The Oregon Court's opinion does not indicate that a trespass motivated by beliefs and done for expressive purposes causes any harm distinct from that caused by an ordinary trespass. In other words, the harm caused by trespassory conduct (the disturbance of plaintiff s possession) is the same whether or not it is motivated by any particular belief Unlike Mitchell, defendants' motive caused no special harms; the Mitchell holding does not permit enhanced penalties for defendants' motives or beliefs in the context of trespassory demonstrations.

In addition to the distinct harms caused by bias-crimes, the statute in Mitchell was based on a legislative decision that an entire class of conduct deserved enhanced penalties.(121) Because the statute provided enhanced penalties for any crime motivated by bias, it was not aimed at particular opinions or beliefs and did not differentiate based on content. The Huffman & Wright situation is again distinguishable because defendants who engage in civil disobedience may or may not be subject to punitive damages depending, in part, on the jury's evaluation of defendants' motives. While, under the Wisconsin statute, all bias-crimes are subject to across-the-board regulation regardless of content, penalties for civil disobedience may depend on a jury's values and the popularity of the message accompanying the conduct.(122) The jury is therefore permitted to do indirectly what the state cannot do in this situation: differentiate between instances of civil disobedience based on the content of the message behind the conduct.(123)

VI. A Solution to Punitive Damages and Civil Disobedience

In civil disobedience cases, the law must recognize the importance of free expression and reconcile it with the need to punish and provide a remedy for misconduct. Punitive damages may threaten protected expression which is intertwined with misconduct, and jury instructions must be carefully limited if the damages are to be allowed at all.

Consistent with First Amendment freedom of expression, an instruction cannot permit the jury to consider and evaluate a defendant's beliefs, motives, or opinions in awarding punitive damages.(124) The "transcendent value of speech"(125) Mandates that, in considering punitive damages, a jury be allowed to consider only the otherwise unlawful conduct, and not the motives or beliefs behind it. Although this standard is more protective than the punitive damages standard when an activity does not implicate expression,(126) it is consistent with the requirement of precise regulations for mixed conduct.(127)

At a minimum, the free expression provision of article I, section 8 of the Oregon Constitution(128) requires the same limitation on the factors a jury may consider in awarding punitive damages in this area. However, such a punitive damage instruction assumes that courts and juries can meaningfully separate conduct from expression in the context of civil disobedience. Because such separation is necessarily artificial,(129) protection from punitive damages should be broader under the Oregon provision.(130)

Aside from the requirement for a more careful jury instruction under current First Amendment and Oregon constitutional law, there is a policy argument for refusing to allow punitive damages for civil disobedience under article I, section 8.(131) First, any attempt to fashion an appropriate punitive damage instruction in civil disobedience cases assumes that conduct can be meaningfully separated from expression in this context. This distinction is necessarily artificial.(132) Second, because of the traditional acceptance of (or at least tolerance for) civil disobedience,(133) as well as the public interest in protecting sensitive political expression, civil disobedience should be subject to the same limitations as other torts involving "abuse of speech."(134) Therefore, the Oregon Supreme Court should interpret article 1, section 8 to allow only criminal responsibility and compensatory civil damages in cases of civil disobedience. Because the conduct and the expression are so interconnected, and the public interest is better served by allowing civil disobedience to continue, while holding lawbreakers accountable, punitive damages should be forbidden. This solution recognizes that, while civil disobedience is not a protected form of expression, the courts should not stop it outright.(135)

Freedom of expression is both a fundamental right and a transcendent value in American society.(136) Although civil disobedience is not protected under either the First Amendment or the Oregon Constitution, it is an inherently expressive activity.(137) While the government can regulate the underlying conduct or "speech plus" aspect of civil disobedience,(138) a jury instruction that allows defendants' motives to be a factor in assessing punitive damages for civil disobedience is impermissible under both constitutional provisions.(139) Additionally, "because of the pivotal role that civil disobedience has played ... the First Amendment should be interpreted to provide breathing space for civil disobedience"(140) and punitive damages should not be permitted in this area.(141) (*) Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1995; B.S. 1992, Psychology, University of Willamette. I wish to thank Professor William Funk for his suggestions and comments. (1) Antonio J. Califa, RICO Threatens Civil Liberties, 43 Vand. L. Rev. 805, 832 (1990). (2) Huffman & Wright Logging Co. v. Wade, 857 P.2d 101, 113, 317 Or. 445, 461 (1993). (3) The portion of the First Amendment relevant to this discussion on freedom of expression reads: "Congress shall make no law ... abridging the freedom of speech, or of the press." U.S. Const. amend. I. (4) See generally C. Edwin Baker, Human Liberty and Freedom of Speech (1989) (liberty stems from free speech); Thomas 1. Emerson, The System of Freedom of Expression (a free society requires freedom of expression). (5) I refer to freedom of "expression" rather than "speech" because the First Amendment protects expressive conduct, though to a lesser extent, as well as "pure speech." See, e.g., Cox v. Louisiana, 379 U.S. 559, 563 (1965) ("[C]ertain forms of conduct mixed with speech may be regulated or prohibited."); United States v. O'Brien, 391 U.S. 367 (1969) (contending government can regulate conduct used to convey message if it asserts a substantial interest unrelated to the message's content). (6) For instance, First Amendment protection has been extended to burning the American flag as a means of protest; this means of expression is protected over the interests of the state or other citizens in protecting a venerated object. Texas v. Johnson, 491 U.S. 397, 407-13, 420 (1989). Displaying offensive words in public to convey a message is also protected, inspite of any interest the state may have in protecting other citizens from exposure to such language. Cohen v. California, 403 U.S. 15, 25 (1971). (7) See, e.g., Califa, supra note 1, at 823 "Marches and demonstrations are quintessential First Amendment activities."); Cohen, 403 U. S. at 26 ("One of the prerogatives of American citizenship is the right to criticize public men and measures." (quoting Baumgartner v. United States, 322 U.S. 665, 673-74 (1944))). (8) "[T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses." Cohen, 403 U.S. at 19. (9) "Mixed conduct" or "speech plus" refers to behavior that has both speech and non-speech elements. Eg., Melville B. Ninimer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L. REV. 29, 32 n.13 ("[S]peech plus [is] verbal locution expressed within the context of conduct which in itself may not be regarded as communicative."). The First Amendment protects "pure speech" and also some types of "expressive conduct." The Supreme Court has stated that in determining whether conduct is protected "it is necessary to determine whether [the] activity was sufficiently imbued with elements of expression to fall within the scope of the First and Fourteenth Amendments." Spence v. Washington, 418 U.S. 405, 409 (1974). The test for whether conduct implicates the First Amendment is whether the actor intends to convey a particularized message and whether under the circumstances there is a great likelihood that the message would be understood by viewers. Id. at 410-11. "Mixed conduct" describes a course of action comprised of both protected expression and otherwise regulable conduct; some types of protest provide examples. See infra notes 11-15 and accompanying text. (10) See, e.g., Adderley v. Florida, 385 U.S. 39, 47 (1966) (holding First Amendment does not preclude enforcement of criminal trespass statute against protesters who refused to leave jail entrance); United States v. Alberdtini, 472 U.S. 675, 687-88 (1985) (holding First Amendment does not bar exclusion of protester from military base under content-neutral regulation). (11) See Califa, supra note 1, at 824 ("Trespass is not constitutionally protected, although it can be a powerful expressive vehicle."). (12) Examples include the abolitionist, women's suffrage, civil rights, and anti-Vietnam War movements. Bruce Ledewitz, Civil Disobedience, Injunctions, and the First Amendment, 19 Hofstra L. Rev. 67, 73-79 (1990). (13) Although there are various definitions of the term, this discussion will use Professor Ledewitz's definition. Id. at 70-71. "Civil disobedience" involves conduct that is known, or believed to be, illegal at the time the acts are committed; the conduct must be "predominantly non-violent;" the conduct must be open such that the participant "intend[s] that the community take notice of the illegal action;" and the participant "must be willing to accept punishment." Id. (14) For example, protesters have held many illegal demonstrations directed at nuclear power and nuclear weapons. Id. at 78-79. (15) By violating the law and being ready to accept punishment, the participant is in effect saying, "this issue is so important to me and to the public that I am willing to be accept criminal punishment to have it heard." See id. at 122 "civil disobedience illustrates depth of commitment"). (16) Huffman & Wright Logging Co. v. Wade, 857 P.2d 101, 317 Or. 445 (1993). (17) Indeed, protesters who engage in civil disobedience knowingly violate the law and are willing to accept criminal sanctions to Illustrate their conviction to their cause. See Ledewitz, supra note 12, at 69-71 (discussing variations of civil disobedience and disagreement over whether conduct must ultimately be Illegal to qualify). (18) Huffman & Wright, 857 P.2d at 105, 317 Or. at 447-48. (19) Id. (20) The protesters were convicted under an Oregon statute which provides: "A person commits the crime of criminal mischief in the third degree if, with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe the person has such right, the person tampers with or interferes with the property of another." Or. Rev. Stat. [sections] 164.345(1) (1993), cited in Huffman & Wright, 857 P.2d 101, 105 & n.3, 317 Or. 445, 448 & n.3. Third degree criminal mischief is a Class C misdemeanor. Id. (citing OR. Rev. Stat. [sections] 164.345(l) (1993)). (21) Id. at 105, 317 Or. at 448. The protest caused no physical damage to the equipment; the claim was limited to the interference with and interruption of operations. Id. (22) "No law shall be passed restraining the free expression of opinion, or restricting the right to speak ... freely on any subject whatever; but every person shall be responsible for abuse of this right." Or. Const. art. 1, [sections] 8. Section 26 protects the right to assemble and petition the government, and is beyond the scope of this discussion. Or. Const. art. 1, [sections] 26. (23) "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. 1. The Fourteenth Amendment extends First Amendment freedom of expression guarantees to the states. Gitlow v. New York, 268 U.S. 652, 666 (1925). See generally Laurence H. Tribe, American Constitutional Law [sections] 11-2, at 772-74 (2d ed. 1988) (describing incorporation). (24) 593 P.2d 777, 286 Or. 99 (1979). (25) Huffman & Wright, 857 P.2d 101, 115-16, 317 Or. 445, 465-66. The First Amendment does not place the same limits on punitive damages; see infra notes 65-66 and accompanying text. (26) Huffman & Wright, 857 P.2d at 106, 317 Or. at 44849. (27) Id. at 118, 317 Or. at 470 (Unis, J., dissenting). (28) Id. (29) Id. (quoting Uniform Civil Jury Instructions [sections] 35.01). (30) Id. (31) Id. at 105, 317 Or. at 448. (32) Huffman & Wright Logging Co. v. Wade, 817 P.2d 1334, 109 Or. App. 37 (1991), affd, 857 P.2d 101, 317 Or. 445 (1993). (33) Huffman & Wright, 857 P.2d 101, 317 Or. 445. (34) Id. at 112, 317 Or. at 458 (noting "[t]he trespassory acts were ... non-expressive conduct"' regardless of message seeking to convey). (35) Id. at 110, 317 Or. at 456. (36) Id. at 106, 317 Or. at 449. In Oregon, punitive damages can be assessed for common law trespass where the trespass is committed with intentional disregard for plaintiffs rights. E.g., Senn v. Bunick, 594 P.2d 837, 40 Or. App. 33 (1979) (upholding $40,000 in punitive damages for trespass by neighboring property owner). (37) Huffman & Wright, 857 P.2d at 111, 317 Or. at 458-59. (38) This is one focus of Justice Unis' dissent. See infra notes 107-112, 130 and accompanying text. (39) See supra notes 7-8. (40) See supra note 9. (41) In limited situations, the government can regulate content, but such regulation is subject to "most exacting scrutiny" and must be narrowly drawn to serve a compelling interest. Tribe, supra note 23, [sections] 12-3, at 798-99. (42) Eg., United States v. O'Brien, 391 U.S. 367, 375 (1968) (allowing government to prohibit draft card burning, even if expressive, because they serve Selective Service purpose). (43) Id. (44) Id. at 377. (45) Id. at 369. (46) Id. at 370. (47) Id. at 377. (48) Id. at 377-378, 380. (49) Id. at 375. The statute in O'Brien can be contrasted with the flag-desecration statute in Texas v. Johnson, which was found to violate the First Amendment. 491 U.S. 387 (1989). The statute, Tex. Penal Code Ann. [sections] 42.09 (West 1989), prohibited desecration of a venerated object, including the national flag, by defacing, damaging, or physically mistreating it in a way that the actor knows will seriously offend others. Texas v. Johnson, 491 U.S. at 400 n.1. The court found that this statute was aimed at the "communicative impact" of the expressive conduct. Id. at 41 1. When the state asserts no interest unrelated to the suppression of free expression, the statute and the asserted interest are subject to "the most exacting scrutiny." Id. at 412 (citing Boos v. Barry, 485 U.S. 312, 321 (1988)). The State's asserted interest in protecting the flag as a venerated object was not compelling enough; a state cannot prohibit expressive conduct because it disapproves of the message. Id. at 416. (50) O'Brien, 391 U.S. at 381-82. (51) See United States v. Albertini, 472 U.S. 675, 687-88 (1985); Adderley v. Florida, 385 U.S. 39, 47 (1966). The First Amendment does preclude application of trespass laws in some situations, such as a "public forum" or on premises which are devoted to public use. See, e.g., Lloyd Corporation v. Whiffen, 849 P.2d 446, 454, 315 Or. 500, 514 (1993); Marsh v. Alabama, 326 U.S. 501, 511 (1946). However, since in this case, the property was not open to public use, First Amendment protections do not apply. Huffman & Wright, 857 P.2d at 112, 317 Or. at 461. (52) See Judge Joseph H. Hart, Free Speech on Private Property--When fundamental Rights Collide, 68 Tex. L. Rev. 1469, 1471 (1990) ("[F]irst amendment ... does not shield the exercise of free speech on private property."); see also Tribe, Supra note 23, [sections] 12-2, at 789, [sections] 12-19, at 944 (discussing balancing test when non-communicative aspects of speech affect other rights). (53) See, e.g., Hart, supra note 52, at 1469 (holding that property ownership is a constitutionally protected, fundamental right). (54) 468 U.S. 288 (1984). (55) Park Service regulations permit camping only in designated campgrounds, and no campgrounds "have ever been designated in Lafayette Park." Id. at 290 (citing 36 C.F.R. [sections] 50.27(a) (1983)). The Court found that "camping" covered the proposed sleeping in this case. Id. at 294-95, 297-98. The Park Service allows demonstrations in Lafayette Park, generally by permit. Id. at 291 (citing 36 C.F.R. [sections] 50.19 (1983)). (56) They wanted to involve homeless persons in the demonstration and claimed that unless sleeping space or meals were available, "the homeless would not come to the site." Id. at 296 (quoting CCNV's Application for a Demonstration Permit 14). (57) Id. at 293. (58) CCNV, 468 U.S. at 294; see supra text accompanying note 51 (discussing the O'Brien test). (59) Id. at 296-97. (60) Id. at 297 (quoting City Council of Los Angeles v. Taxpayer for Vincent, 466 U.S. 789, 810 (1984)). The court affirmed that, even though the Park Service expressly allowed demonstrations in the park, "reasonable time, place, or manner restrictions on expression are constitutionally acceptable." Id. at 298. See generally Tribe, Supra note 23, [sections] 12-23, at 977-86 explaining "time, place, or manner" restrictions). (61) For one, the demonstrators had no permission to express themselves using Huffman and Wrights personal property, which was not generally available to the public. Huffman Wright, 857 P.2d at 112-13, 317 Or. at 461. (62) They testified that "[w]ithout the non-violent civil disobedience element of the demonstration, the event would not have been considered `newsworthy' by the press, and so likely would not have brought the issue to the attention of the public or of elected or appointed officials." Id. at 114, 317 Or. at 463. (Unis, J., dissenting). (63) Id. at 107, 317 Or. at 450 (quoting Hall v. The May Department Stores, 637 P.2d 126, 135, 292 Or. 131, 146 (1981)). (64) Smith v. Wade, 461 U.S. 30, 58 (1983) (Relinquist, J., dissenting) (explaining the rationale behind punitive damages and citing Dan B. Dobbs, Law of Remedies 205 (1973); Charms T. McCormick, Law of Damages 275 (1935); Kenneth R. Redden, Punitive Damages [sections] 2.1 (1980); Electrical (65) "To the extent that punitive civil damages exist, not only to punish conduct, but also to deter others from similar acts, they are a form of indirect regulation." Huffman & Wright, 857 P.2d at 107 n.7, 317 Or. at 451 n.7 (citations omitted). (66) Defamation and libel are two exceptions. These torts are aimed at the content of the expression and are thus closely tied to First Amendment freedoms. When a plaintiff is a "public figure" or the alleged statements involved "public issues," punitive damages are only recoverable if the plaintiff can prove "actual malice," i.e. that defendant published the statement with actual knowledge or reckless disregard of its falsity. N.Y. Times v. Sullivan, 376 U.S. 254, 279-80 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Tribe, Supra note 23, [sections] 12-12, at 875. Punitive and presumed damages are available under the First Amendment for defamation and libel in non-public contexts. Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). See generally Tribe, Supra note 23, [subsections] 12-2, 12-3, at 789-804. (67) Wisconsin v. Mitchell, 113 S. Ct. 2194, 2201 (1993) (bias-motivated crimes are more likely to provoke retaliatory crimes, and cause other special harms); see also Roberts v. United States Jaycees, 468 U. S. 609, 628 (1984) ("violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection"). (68) See supra notes 22-23 for relevant text, of both constitutions. (69) Wheeler v. Green, 593 P.2d 777, 286 Or. 99 (1979); Hall v. The May Dep't Stores, 637 P.2d 126, 292 Or. 131 (1981); Lewis v. Oregon Beauty Supply Co., 733 P.2d 430, 302 Or. 616 (1987). The analysis is similar for criminal laws and for punitive damages. Huffman & Wright, 857 P.2d at 106, 317 Or. at 450. The court distinguishes between three types of regulations: those that are "directed to the substance of an opinion or subject of communication," those "that focus on forbidden effects, but ... prohibit expression to achieve those effects," and those that forbid only the effects without referring to expression. Id. at 108, 317 Or. at 452. (70) 593 P.2d 777, 286 Or. 99 (1979). (71) Or. Const. art. 1, [sections] 8. See supra note 22 for text of Oregon Constitution. (72) Oregon's Constitution guarantees "[a] remedy by due course of law for injury [to] person, property, or reputation." Or. Const. art. I, [sections] 10. (73) The court reconciled the two provisions to make a persons civilly responsible for "abuse of speech" only to the extent of compensating the victim. Wheeler v. Green, 593 P.2d 777, 788, 286 Or. 99, 118-19 (1979). (74) Id. at 788, 286 Or. at 118. (75) "In the sensitive area of free expression.... the threat of large damage recoveries can ... inhibit ... constitutionally protected expression, as well as its abuse." Id. at 119. The tort of defamation is in the first category of laws because it is aimed at the content of the expression. Huffman & Wright, 857 P.2d at 108, 317 Or. at 453. Unlike the First Amendment analysis, the availability of punitive damages for expressive torts under the Oregon Constitution does not vary depending on whether a "public figure" or "public issue" is involved. See also, supra note 66. (76) 637 P.2d 126, 292 Or 131 (1981). (77) Id. at 136, 317 Or. at 147. (78) Id. at 135, 292 Or. at 146. This tort is in the second category because it forbids expression to achieve certain results. Huffman & Wright, 857 P.2d at 110, 317 Or. at 455-56. (79) 733 P.2d 430, 302 Or. 616 (1987). (80) Id. at 431, 317 Or. at 617. (81) For example, he called plaintiff a whore, and made various statements about plaintiff to other employees; he slammed a door into her, searched her personal belongings, and threw things at her. Id. at 432, 302 Or. at 618. (82) Id. at 438, 302 Or. at 629. Even though these acts could be seen as "expressing" defendant's feelings toward plaintiff, the court held that they were still "non-expressive conduct." Id. (83) Id. The Huffman & Wright decision categorized the intentional interference involved in Lewis as a tort that can be committed by speech or by conduct. Huffman & Wright, 857 P.2d at 110, 317 Or. at 455-56. (84) The court distinguishes "pure speech" and "mixed conduct." That is, in the Oregon Beauty Supply Co. situation, if the defendant had requested a proper instruction, the jury could not assess punitive damages for defendant's name-calling and critical remarks. His conduct, such as slamming the door, supports punitive damages independently of the expressive element. See, e.g, Roshak v. Leathers, 560 P.2d 275, 277 Or. 207 (1977) (punitive damages available for assault and battery). (85) Trespass therefore belongs in the "third category" of laws. Huffman & Wright, 857 P.2d at 110, 317 Or. at 456; supra note 69. (86) Id. at 110, 317 Or. at 457. (87) Id. at 105, 317 Or. at 448. (88) The problem with this assumption in cases of civil disobedience is that, to a great extent, the act, i.e. the trespass, is the expression. See supra note 15. (89) See infra notes 91, 102-112 and accompanying text. (90) Id. (91) See Cohen v. California, 403 U.S. 15, 26 (1971) ("[M]uch linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well."). See also Tribe, Supra note 23, [sections] 12-7, at 827 ("Expression and conduct, message and medium, are thus inextricably tied together in all communicative behavior."); Ledewitz, supra note 12, at 122 ("[H]ow something is said is intimately related to what is said."). (92) See infra section V. (93) See, e.g., David A. Walther & Thomas A. Plein, Punitive Damages: A Critical Analysis: Kink v. Combs, 49 Marq. L. Rev. 369 (1965). A detailed analysis of punitive damages is beyond the scope of this Note. For a more thorough discussion see Dan B. Dobbs, LAW OF Remedies: Damages-Equity-Restitution [sections] 3.11 (1993). (94) See Smith v. Wade, 461 [J.S. 30, 58 (1983) (Rehnquist, J., dissenting) (explaining the rationale behind punitive damages and citing Dan B. Dobbs, Law of Remedies 205 (1973); Charles T. McCormick, Law of Damages 275 (1935); Kenneth R. Redden, Punitive Damages [sections] 2.1 (1980); Electrical Workers v. Foust, 442 U.S. 42, 48 (1979)). (95) Dan B. Dobbs, Law of Remedies 205 (1973). (96) See, e.g., id. at 59 (citing Huber v. Teuber, 10 D.C. (3 MacArth.) 484, 490 (1877)). (97) Id. For example, the burden of proof in criminal proceedings is guilt beyond a reasonable doubt. Or. Rev. Stat. [sections] 136.415 (1993). For punitive damages the standard is the less stringent "clear and convincing evidence." Or. Rev. Stat. [sections] 41.315(l) (1993). (98) Smith v. Wade, 461 U.S. at 59 (Rehnquist, J., dissenting) (citing David L. Walther & Thomas A. Plein, Punitive Damages; A Critical Analysis: Kink v. Combs, 49 Marw. L. Rev. 369 (1965)). (99) Smith v. Wade, 461 U.S. at 59 (Rehnquist, J., dissenting) (quoting Electrical Workers v. Foust, 442 U.S. at 50-51). (100) Huffman & Wright, 857 P.2d at 118, 317 Or. at 470 (based on Oregon Uniform Civil Jury Instructions [sections] 35.01). (101) Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974). Though beyond this discussion, the United States Supreme Court has recently addressed the due process difficulties with punitive damages. In Pacific Mut. Life Ins. Co. v. Haslip, the Court affirmed an award of punitive damages as consistent with due process when the ratio of punitive damages to compensatory damages was more than four-to-one. 499 U.S. 1, 23 (1991). However, in Honda Motor Co. v. Oberg, the Supreme Court held that an amendment to the Oregon Constitution that prohibits judicial review of punitive damage awards "unless the court can affirmatively say there is no evidence to support the verdict" is not consistent with the Due Process Clause of the Fourteenth Amendment. 114 S. Ct. 2331, 2334 (1994); Or. Const. art. 7, [sections] 3 (amended section of constitution at issue in Honda Motor Co. v. Oberg). The Huffman & Wright defendants apparently did not raise a due process challenge to the punitive damage award. The Oregon Court of Appeals recently stated that Oberg requires "a change in previous Oregon law regarding the authority of courts to re-examine a factfinder's determination of the appropriate amount of punitive damages." Stranahan v. Fred Meyer, Inc., 878 P.2d 1123, 1127 n.4, 129 Or. App. 247, 254 n.4 (1994). (102) Smith v. Wade, 461 U.S. at 59 (Rehnquist, J., dissenting). Justice Rehnquist notes that "chilling" is likely when the standards for an award of punitive damages "are ill-defined." Id. This concern is relevant to the standard for punitive damages in the Huffman & Wright case because there the instruction was unclear and based upon the misconception that the conduct and message were separable. See discussion infra text accompanying notes 107-112. (103) Huffman & Wright, 857 P.2d at 111, 317 Or. at 458. Defendants argued that because the jury heard evidence of both trespassory conduct and speech, it was likely that the jury punished defendants for their politically unpopular views. Id. (104) Id. The court stated that "the power to avoid being punished for any protected expression lay in their own hands" and that the jury, if properly instructed to differentiate between the acts constituting the trespass and the "expression of views," could have awarded punitive damages solely for the conduct. Id at 111, 317 Or. at, 458-59. (105) Id. at 113, 317 Or. at 462. (106) The instruction is based on Oregon Uniform civil Jury Instructions [sections] 35.01. See supra text accompanying notes 27-30. Presumably, even if defendants had requested an instruction that the jury could not consider any expressive activities in awarding punitive damages, the same general punitive damages instruction would have been given regarding the conduct, because the jury instructions are designed, generally, for all claims. See Committee on Uniform Civ. Jury Instructions, Oregon State Bar, Oregon Jury Instructions for Civil Cases [sections] 75 (1993). (107) The dissent argued that, regardless of a jury instruction to separate the conduct from the expression, when a significant communicative or expressive element is intertwined with conduct, an award of punitive damages violates art. I, section 8 of the Oregon Constitution if the communicative component is allowed as a factor. Huffman & Wright, 857 P.2d at 119, 317 Or. at 471-72 (Unis, J., dissenting); see also infra notes 112, 130. (108) Huffman & Wright, at 118, 317 Or. at 470 (Unis, J., dissenting). Prior to considering punitive damages, the jury had to find that defendants' conduct was "wanton", i.e., "a particularly aggravated, deliberate disregard of the rights of others." Id. Justice Unis argued that this too allowed the jury to look beyond the conduct and decide whether the accompanying expression made the conduct "bad." Id. (109) Id. (110) Id. (111) Id. (112) Id. at 119, 317 Or. at 471. Synthesizing this case with the court's prior decisions involving punitive damages and expression, Justice Unis stated that "the critical thread that binds [the decisions together is] that punitive damages may not be imposed for tortious conduct if speech is a significant factor in determining whether to award punitive damages for that tortious conduct." Id. (113) Id. at 112, 317 Or. at 460 (citing Wisconsin v. Mitchell, 113 S. Ct. 2194, 2199 (1993)). (114) W Co in v. Mitchell, 113 S. Ct. 2194, 2202 (1993). In addition to race, the statute "enhances the maximum penalty for an offense whenever the defendant `[i]ntentionally selects' [the victim] ... `because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person."' Id. at 2197 (quoting Wis. Stat. [sections] 939.645(1)(b) (1989-1990)). (115) Id. at 2199. (116) Id. at 2200. The Court cited decisions that held that Title VII and other antidiscrimination statutes are permissible as "content-neutral regidation of conduct." Id. (117) id. at 2201. For example, "bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." Id. (118) Id. (119) Huffman & Wright, 857 P.2d at 112, 317 Or. at 460. While it is correct that "the tort of trespass to chattels is aimed at conduct not protected by ... free expression," id., the punitive damage instruction for that tort does reach protected expression. See supra text accompanying notes 107-12. (120) Wisconsin v. Mitchell, 113 S. Ct. at 2201. (121) Id. at 2200. (122) See supra notes 107-12 and accompanying text. (123) "The First Amendment generally prevents government from proscribing speech or expressive conduct because of disapproval of the ideas expressed." State v. Plowman, 838 P.2d 558, 565, 314 Or. 157, 168 (1993) (citing R.A.V. v. City, of St. Paid, 112 S. Ct. 2538 (1992)). (124) See supra section V. (125) Speiser v. Randall, 357 U.S. 513, 526 (1958). (126) The jury can generally consider motive in deciding to award punitive damages and in fixing the amount because such consideration is relevant to determining the amount necessary to deter future conduct. Huffman & Wright, 857 P.2d at 118, 317 Or. at 470 (discussing Oregon Uniform Civil Jury instructions [sections] 35.01). (127) See Califa, supra note 1, at 837 (1990) (precision of regulation requires that when protected and non-protected conduct occur together, the non-protected conduct must be carefully separated; in close cases, err on the side of protection). (128) Or. Const. art. I, [sections] 8. (129) See Smith v. Wade, 461 U.S. 30, 58 (1983); see also supra note 108 (conduct and expression are not considered separately). (130) In his dissent, Justice Unis argues that when the expression is "intertwined with" or is a significant component of the tortious conduct, article I, [sections] 8 forbids a punitive damages standard which at least partly allows the jury to consider the underlying expression in awarding punitive damages for the tortious conduct. Huffman & Wright, 857 P.2d at 120-21, 317 Or. at 474-75. (131) An argument can be made for limiting punitive damages under the First Amendment cases as well. This would require extension of some of the same protections afforded to "pure speech" to expressive conduct, such as civil disobedience. For example, the First Amendment requires a higher standard than the common law rule of strict liability for defamatory false statements and presumed damages for injury to reputation in cases involving "public figures" or "public issues." To recover damages, punitive or compensatory, in these cases, plaintiff must prove "actual malice." See supra, note 66. The rationale is that, although libel causes harm, the comparative value of lively exchanges in the public arena justifies restricting damages in this sensitive area of political speech. See New York Times v. Sullivan, 376 U.S. 254, 270, 272 (1964) (public interest in uninhibited debate on public issues outweighs individual interests).

This logic could be extended to civil disobedience cases, in that civil disobedience is often used to express opinions on, and draw public attention to, important public issues. See supra, notes 11-15 and accompanying text. Arguably, the public interest and the traditions behind this form of political expression could justify limiting responsibility for civil disobedience to compensatory damages and criminal sanctions for the conduct involved. See generally Ledewitz, supra note 12. While defamation and libel can cause great injury to individuals, civil disobedience generally causes little actual damage; civil disobedience should be entitled to at least, some degree of First Amendment protection. See Tribe, Supra note 23.

As discussed supra, notes 11-13, this argument is limited to non-violent civil disobedience, such as the Huffman & Wright demonstration and the traditional "sit-in," which involves relatively minor violations of the law, is mainly inconvenient rather than truly damaging, and only temporarily impacts other individual rights. (132) See supra note 91 and accompanying text. (133) See Ledewitz, supra note 12, at 82 ("The acceptance of non-violent, illegal political protest is an expression of a true American political genius."). (134) See supra notes 66, 74-77 and accompanying text; see also Wheeler v. Green, 593 P.2d 777, 788-89, 286 Or. 99, 118-19 (1979); Hall v. The May Dep't Stores, 637 P.2d 126, 135-36, 292 Or. 131, 146-47 (1981); Lewis v. Oregon Beauty Supply Co., 733 P.2d 430, 438, 302 Or. 616, 629 (1987). (135) Ledewitz, supra note 12, at 80-82 (arguing that, for similar reasons, civil disobedience should not be enjoined). (136) See supra text accompanying notes 3-7. (137) See supra text accompanying notes 7-11, 15 and sections III, IV. (138) Id. (139) See supra section V. (140) Ledewitz, supra note 12, at. 121. (141) See supra section VI.