Youthful Student Protest and Liability for Damages to Third Parties: A Student and Parent Dilemma

It has become a commonplace in the present day for the news to be dominated by examples of youth protest which sadly has become violent. This was the case in May 2017 at Evergreen State University in Portland, Oregon, where students protesting alleged inequities on the traditionally left-leaning campus expressed their wrath against Evergreen biology professor Bret Weinstein. It seems the professor, who is Caucasian, publically refused to leave campus when he and all other Caucasians were asked to leave campus by various minority activists in the spirit of honoring “A Day of Absence.”  This led to various disruptions across campus, including student scuffles with police, the University’s president being held hostage in his office, and the eventual firing of the biology professor. A much more subtle protest took place one month earlier at Linfield College, in McMinnville, Oregon, where a tumultuous student and faculty protest prevented University of Toronto professor Jordan Peterson from speaking on the Linfield College campus at considerable expense to the speaker.

While in the United States the right to free speech is highly protected and as a course of conduct enjoys a privileged position by the First Amendment , such protection is not absolute.  Justice Holmes was one of the first to articulate limits to the exercise of free speech when in Schenck v. United States when such speech was “ . . .used in such circumstances and [of] such a nature as to create a clear and present danger.” Schenck v. United States, 249 U.S. 47 (1919). However, the mere fact that speech is offensive or incites hostile feelings alone does not give rise to the State’s ability to abridge such speech. Rather, such speech may only be abridged when it is accompanied by acts or statements “. . . likely to provoke violence and disturbance of good order, even though no such eventuality be intended.” Cantwell v. Connecticut, 310 U.S. 296 (1940).  Thus, when speech is laden with fighting words, lewd references, profanity, libel, obscenity, or other elements of low speech value, there exists no First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Finally, when speech has the potential to lead to serious damage to persons, places or national security, such speech may be abridged or eliminated altogether. Haig v. Agee, 453 U.S. 280 (1981).

In both of the instances of protest cited above, youthful protest has led to actual damage to persons. Thus, the conversation no longer turns on issues of the preservation of free speech but rather the liability incurred by the exercise of speech, lawful or not.

It is reasonably certain that the victims of the protests at both Evergreen State University and Linfield College have legally recognizable causes of action on the basis of wrongful discharge of employment, intentional infliction of emotional distress, tortious interference with contract, violation of civil rights, false imprisonment,  and libel and slander. Assuming that the protesters' actions can be demonstrated at trial to be the direct and proximate cause of injury, the question arises:  are young people who engage in these protests liable to third parties for their injuries? Are these protestors shielded by their youth from the various civil rights and torts claims that can be arrayed against them? And how about the parents of these protesters: Are they vicariously liable for the tortious actions of their children?

The overwhelming evidence out there is that both the protestors and their parents (if the protestor is under the age of majority) can be held liable.

In most states, legislation exists that hold parents or legal guardians liable for the willful or malicious conduct of their unemancipated children that results in property damage or injury to another person.  See Cal. Civ. Code §1714.1; N.J. Stat. Ann. 2A:53A-15; Tex. Fam. Code Ann. §§33.01-33.03. In North Carolina,  North Carolina General Statute §1-538.1 makes parents responsible for the acts of their children who “maliciously injure [any] person or destroy the real or personal property of such person.” N.C. Gen. Stat. §1-538.1 (1993).  So in the case of a youthful protestor under the age of majority who has caused a person to be wrongfully terminated or otherwise sustain damage to their person or property, the parents may very well be on the hook (at least for part of the damages). As to those that are above the age of majority, there is no shield to liability for the tortious acts one commits against a third party. If, in the course of exercising a speech act a young person engages in conduct that brings harm to another person, no matter how righteous their cause, they will be held responsible for the damages inflicted upon the other person.

All this should give one pause to consider two valuable points:

First, to the Students: know that just because you are young, you are not above the law and that your actions can and will have consequences that may complicate your financial future.

Second,  to the Parents: do you know what your child is up to on campus and will it end up causing you to pay claims that will compromise the child’s ability to financially remain in college?