5:28 PM :: Stephen (contact)

Of Rabbits and Hunger Strikes: Lior Strahilevitz, whose article on The Right to Destroy partly inspired my Saving Toby piece noted below, responds to the piece on the U. Chicago Faculty Blog. He writes:

Animal cruelty laws ought to govern threats like the one faced by Toby. And the appropriate response to a child who threatens to hold her breath until she turns blue is probably to call the bluff, though I will admit to a lack of expertise on that score. Where there is reason to think that calling the bluff will force the owner to destroy the property in question so as to maintain the credibility of future threats, the state can always exercise its eminent domain power to take property from the person who is threatening to destroy it. Indeed, I think that using the eminent domain power to save Toby is analogous in some ways to what the government was attempting to do in Kelo, and someone who believes that Kelo was wrongly decided should ask herself whether she would object to using eminent domain to take a Picasso away from someone who credibly pledges to burn it.

Sachs says that “extortionate” destruction of one’s own property does not typically implicate constitutionally protected expressive interests. But we should be familiar with one very effective form of “threatening to kill Toby.” Hunger strikes have been used with great effectiveness by political dissidents, so I guess I wonder about Sachs’s determination that prohibiting the “hunger strike” variety of blackmail will not implicate the expressive and autonomy interests that often arise when people decide to destroy their own valuable property. The fact that a hunger striker will eat if his demands are satisfied hardly removes the expressive content from his act.

I'd be the first to admit that the Comment was written with tongue at least partly in cheek--and that the proposed statutory language would need a good deal more refinement. However, I'm not sure that Strahilevitz's critique is sound.

Starting with the question of hunger strikes, I think it's not difficult to distinguish the expressive value they embody from the threat to Toby's life. Expressive hunger strikes generally don't involve destruction of property, as we typically understand the term, nor are they often done for money. (If the average person received a note from a desperate acquaintance that read, "Pay me $50,000 immediately or I'll kill myself--and the blood will be on your hands!," she might have a very different attitude toward the expressive value of such an act.)

Regardless, hunger strikes and other forms of self-immolation would be outside the textual reach of my proposal. Most people are willing to accord a certain measure of control over one's own body, and without trying to advance a "general theory of acceptable coercion," as I wrote in the Comment, it's worthwhile to ask whether the extortionate destruction of property falls within that range.

Additionally, I'm not sure why Strahilevitz considers eminent domain to be a more appropriate approach to Toby's plight. Let's change the example away from rabbits--though I doubt that animal cruelty laws would ever prevent slaughter by a licensed butcher. Suppose the evil Dr. Black threatens to toss a priceless Picasso in the flames, unless his millionaire neighbor pays its ransom. Would eminent domain be the right response? For one thing, the state might never find out about the threat until it's too late--perhaps by Dr. Black's own efforts. ("I'll burn the painting, unless you (a) pay me $5 million and (b) keep this whole thing secret.") For another, even if the state found out, its preferences for risk (or for paintings) might be different from those of the neighbor; perhaps the state would choose to save its money and call Dr. Black's bluff, and the neighbor isn't willing to take that chance. And in any case, if one accepts that threats like these aren't legitimate commercial offers, and deseve some kind of state intervention, why should we prefer the cumbersome and unpredictable processes of eminent domain over a more general deterrent? Why not, at the very least, let the victim seek an injunction against the threatened harm?