Criminal defenses in environmental civil disobedience cases : necessity defense versus freedom of expression

Environmental civil disobedience transforms the powerlessness of citizens to influence the policies of States in terms of environmental protection into a strategy of action against them. By doing so, it makes the current ecological emergency more visible and reactivates the public debate. Facing both an increase and a diversification of disobedient actions in environmental matters since 2018, judicial authorities sometimes choose to prosecute the authors before the criminal courts. This paper aims to take stock of the latest developments concerning acts of civil disobedience realized in the context of the current ecological emergency and to highlight some important criminal court decisions on the continent (France, Switzerland) and in the United States in this specific context. It also aims to analyze which are the defenses frequently used by activists in front of criminal courts, namely the necessity defense (“état de nécessité”) and the right to freedom of expression. These defenses are constantly challenging the criminal attorneys, who have a determinant role in developing new arguments to defend activists and, with them, the criminal judges, who have to consider and respond to these arguments. These two defenses s’evocation highlights the imperative need to deploy legal arguments innovatively. It also demonstrates that the law, mobilized in a dynamic and creative way, can (and must continue to) participate in social changes.