This article (which I serialized several months ago) is now out in the NYU Journal of Law & Liberty. The Introduction:
Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn't go along. And, as often happens, Craig's threatened crime would endanger not just Danielle but also innocent bystanders.
Should the legal system require Danielle to comply with the demand, on pain of civil liability or even of criminal punishment? Or should Danielle have, in effect, a right to defy Craig's demands, even if this means a higher risk to bystanders?
These questions arise in many contexts: threats to abortion clinics; attempts to impose a "heckler's veto" on unpopular speakers; threats by robbers or kidnappers; attacks by jealous exes; and more. And they arise with many legal rules that might punish such defiance, such as nuisance law, negligence law, and the criminal law of disturbing the peace and recklessness endangerment. A version of the problem also arises with the criminal law duty to retreat and its lesser-known cousin, the duty to comply with negative demands.
In this Article, I'll try to bridge these topics, discussing the various facets of the problem together; I hope that showing these connections (which to my knowledge, had not been drawn before) can more clearly illuminate the core principles underlying the right. My conclusion is that, on balance, it's good for courts and legislatures to generally recognize a "right to defy criminal demands": a right to refuse to comply with such demands, without being held civilly or criminally liable for the consequences of this defiance, and without losing other important rights (such as the right to lethal self-defense) because of such defiance. And I think the legal system does indeed usually recognize it, though not completely consistently, and without a recognition that the right transcends various legal doctrines. (This Article is thus within the longstanding genre of works that infer a legal principle from a set of legal decisions that support the principle, even when the decisions haven't consciously articulated the principle.)
