Skip to main content

Exit WCAG Theme

Switch to Non-ADA Website

Accessibility Options

Select Text Sizes

Select Text Color

Website Accessibility Information Close Options
Close Menu

Activism & the Necessity Defense


We’ve previously discussed how the line is drawn between free speech and crime. When a protest turns violent, individuals engaged in the protest can sometimes be arrested for crimes such as assault and battery.

But what about environmental activists trying to stop a pipeline from being constructed and draw attention to the issue of climate change, and the individuals who film them? One activist who targeted an oil pipeline in North Dakota is not only about to stand trial, but, surprisingly, so could the individual who filmed his protest activities.

Pipeline Protest

The activist—Michael Foster—was part of a group of activists (“Climate Direct Action”) speaking out against the construction of the Dakota Access pipeline, as it was projected to affect Minnesota, Montana, North Dakota, and Washington. Reportedly, the activists trespassed onto private property and shutoff valves to five pipelines carrying oil from Canada to the United States.

However, because the protesters warned the relevant oil companies about their plans before doing so, the companies temporarily shut those sites down anyway before the protesters reached the valves, and thus the shut-offs did not affect the pipelines because they weren’t operating at the time.

Other activists involved in the shut-off have been convicted of burglary, but not sabotage, and have spent two days in prison (while also having to serve community service). While charges against those filmmakers were dropped, Foster is still facing felony and misdemeanor charges for criminal trespass, mischief, conspiracy, and reckless endangerment, and the individual who filmed him will also stand trial. If convicted, Foster could face spending more than 20 years in prison and paying $40,000, while his filmmaker could serve about half of that sentence.

A Unique Defense

While these activists went beyond free speech and attempted to interfere with company property, is 20 years in jail a fair amount of time to assess against someone with no prior record, who did no damage, and who even warned companies beforehand of his intentions?

Rumor has it that Foster intends to use what’s known as the “necessity defense,” arguing that he committed a crime in order to prevent a greater crime from occurring. In doing so, the defendant appeals to the conscience of the jury by detailing why they felt that the action was necessary, according to their own conscience. In other words, it is an opportunity for an activist to use the legal system to demonstrate that the crime they are being charged with is not as bad as the harm they are trying to prevent.

However, the defense is not permitted in every state, and it can even be difficult to tell if it is allowed under that state’s statute. As a result, sometimes the judge won’t allow it, even if they do still allow the defendant to make a statement to the jury about their motivations.

That being said, the defense is available in the state of Florida, where the law dictates that it is a defense if the defendant committed a criminal act out of either necessity or duress if they establish the following:

  • The defendant reasonably believed a danger or emergency existed (not including a danger or emergency caused by themselves);
  • The danger threatened themselves or another party;
  • The danger or emergency threatened death or serious bodily injury;
  • The potential harm was real, imminent, and impending;
  • The defendant had no reasonable means of avoiding the danger or emergency (other than committing the crime); and
  • The harm that the defendant avoided in doing so outweighed the harm caused by committing the crime.

Criminal Defense Attorneys Serving Florida and Massachusetts

At the Baez Law Firm, we represent individuals standing up for their free speech rights and the principles they believe in. If you are facing charges as a result of your activism, contact us today to find out how we can help.


By submitting this form I acknowledge that form submissions via this website do not create an attorney-client relationship, and any information I send is not protected by attorney-client privilege.

DISCLAIMER: This website contains information about The Baez Law Firm that includes testimonial statements from persons who are familiar with the firm's services. The testimonials shown are not necessarily representative of every person's experience with us. Testimonials from every client are not provided. As no two situations or persons are identical, the facts and circumstances of your situation may differ from those for which testimonials are shown. This website also includes information about some of the past results that we have obtained for our clients. Not all results are provided, and the results shown are not necessarily representative of all results obtained by us. No two situation are exactly alike; every person's situation is unique and the outcome for each person depends on the individual facts.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

Skip footer and go back to main navigation