Resisting punishment as a rights-claiming activity: Grounded normative theory, civil disobedience, and the right to protest

International human rights norms protect the right to freedom of assembly, yet states increasingly use the legal system to criminalize dissent. A key philosophical idea used to distinguish “legitimate” from “illegitimate” acts of civil disobedience is the punishment proviso, which insists activists must willingly accept the resulting legal consequences of their actions. Building on grounded normative theory (GNT), we assess whether and when this proviso is consistent with contemporary protest rights. Drawing on 57 semistructured interviews with experienced protesters in Rio de Janeiro, London, and New York, we show that activists understand civil disobedience as extending into the legal process—through plea decisions, defenses, and refusals of sanction—rather than ending at arrest. We developed a rights-compatible refusal test (RCRT) that specifies conditions under which declining to accept punishment can be justified as part of rights-respecting civil disobedience: when procedures are unfair or discriminatory, legal sanctions are disproportionate or chilling of public assembly and freedom of expression rights, and defenders face reprisals, among others. Acceptance of punishment is neither necessary nor presumptively desirable as a criterion of legitimacy. Courts and prosecutors should evaluate protest cases through necessity, proportionality, and nondiscrimination rather than treating acceptance of punishment as a litmus test.