Should a public agency force protesters to pay the costs of a demonstration?
By Tim Redmond
JANUARY 14, 2015 – In September, 1981, thousands of antinuclear protesters showed up at the gates of the Diablo Canyon nuclear power plant to try to prevent the toxic nuke on an earthquake fault from opening as scheduled. The blockade went on for two weeks; by the time it had ended, an engineer discovered that the plant’s owner, Pacific Gas and Electric Co., had installed some critical hardware upside-down. The safety review and rebuild of the plant took years.
But before the demonstration was even over, a right-wing legal group sued the Abalone Alliance and some protest organizers for $1 million. The group, representing a utility shareholders’ group and some conservative organizations that liked nuclear power, argued that the blockade was costing taxpayers money (to arrest the protesters), costing utility users the right to have nuclear power, and costing PG&E shareholders money because the ignition of a very expensive power plant was delayed.
Everyone knew that the Abalone Alliance, a loose collection of largely anarchic clean-power groups, didn’t have $1 million. Most of my friends who were involved didn’t have $100. But that wasn’t the point: The lawsuit was designed to intimidate the protesters, force them to cough up legal fees – and prevent further demonstrations.
As it turned out, the law firm of Morrison and Foerster – widely known for its pro-bono work – represented the Abalone Alliance and got the case thrown out of court. And lawsuits like that led to the adoption of the California SLAPP suit statute – a law that says, in essence, that you can’t sue someone to try to shut down his or her right to free speech.
Now we’ve got an interesting twist on the issue: BART has discussed going after Black Lives Matter protesters and hitting them up for $70,000 in costs related to a protest that shut down the train system for a few hours.
It raises an important question: Should a government agency ever seek to deter protests by demanding that activists pay stiff financial penalties related to the impacts of their actions?
Now: I just spoke to the vice-president of the BART Board, Tom Radulovich, and he told me that the agency is unlikely to actually pursue monetary damages. “Asking for financial restitution is inappropriate,” he told me. “It’s my understanding that the general manager agrees.”
The general manager, Grace Crunican, has been a little more vague. Her press office referred me to this statement, which only says:
Recently, the BART Police Chief and I have been in conversation with Alameda County District Attorney Nancy O’Malley about the pending criminal charges against the 14 protesters. We discussed my interest in community service as an element of restitution and the possibility of Restorative Justice Programs being factored into the legal proceedings.
This is a little different from the Abalone Alliance case — BART isn’t suing the protesters. The agency is using a state law that allows people who are the victims of crimes to force the perpetrators, as part of a criminal case, to pay “restitution.” It’s an unusual twist — but the issue is the same.
There can’t be any talk of restitution until after the criminal cases, which are moving slowly, are completed. While some BART Board members have tried to put the whole thing on O’Malley’s plate, the reality is that no district attorney in the Bay Area is going to push for restitution in a criminal case like this unless the agency involved – BART – asks for it.
So the question on the table – should the protesters have to pay the costs of what BART claims were damages from the demo – is really a policy matter for the BART Board.
I don’t think there’s a remote chance that BART will ever get a penny from the demonstrators. But that’s not the point.
When Rosa Parks and Rev. Martin Luther King, Jr, among others, organized the Montgomery bus boycott, the city and some business owners tried to claim that the action had financial impacts – lower fare receipts and lower revenue for businesses – and tried to force the organizers to pay. Peter Scheer, director of the California First Amendment Coalition, told me the case went all the way to the US Supreme Court, which ruled that there’s nothing illegal about refusing to ride a bus or shop at a business, and that organizing a boycott is a form of free speech.
In other words: You can’t make the people who (nearly) shut down the Montgomery bus system and caused damage to some business pay those costs. There’s a right to protest racism.
Here, Scheer told me, it’s a little more complicated. The BART demonstrators allegedly violated the law (although there was a law in Alabama against boycotts, too, but it was thrown out by the courts). If they’d spray painted graffiti on a station wall, they could be forced to pay the cost of cleaning it up – even if the message was protected speech, Scheer said.
I’m not a lawyer, but at a certain point, we’re talking angels dancing on a pin. The real issue is simple:
If a public agency – BART – can try to stick demonstrators with a huge, radical, unpayable tab for a civil disobedience act, won’t that have an impact on free speech in the future?
I’m assuming, for the moment here, that you can equate civil disobedience – which typically involved breaking the law – with free speech. I think I’m in good company there; civil disobedience has a long and noble history in this country. And it’s one thing to charge someone with a (minor) crime for blocking a sidewalk or a nuclear power plant or a weapons lab or a non-union hotel or a BART station; it’s another thing entirely to try to collect a paralyzing sum of money.
I’ve been arrested plenty of times at sit-ins and blockades, and done some (modest) stints in county jail. So have a lot of my readers. Risking arrest for something you care about is a big part of the progressive movement.
But you thought the price of a protest was $70,000, would you think again? Of course you would. That’s what makes me so nervous.
Alicia Garza, who helped organize the Black Lives Matter actions, told me that people who have been involved in protest actions, some of them involving property destruction, all over the East Bay of late have escaped with no charges – and certainly no massive restitution claims.
“But we have a Black instigated and implemented action about Black Lives Matter and they want to throw the book at us.”
Garza is pretty clear: “They aren’t going to get a dime from us.” And I think she’s right.
But I also think there’s something really alarming going on here when BART even starts talking about collecting “restitution.”
The $70,000 figure is pretty random; that, BART spokesperson Alicia Trost told me, is the “estimate for fares lost during the time the system was down.” Whatever. As I said, the 14 people arrested during the action probably aren’t going to end up paying it. (Instead, BART might consider “restorative justice” – like cleaning up graffiti – and I can’t quite figure out what that might be.)
But either way, the threat is enough to potentially deter future protests. And is that really how BART wants to operate?
There’s a protest Friday, Jan. 16th at 7am at the Montgomery BART station.I don’t know why the organizers are asking people to bring metal spoons.