Legislation in Ten States Threatens Erosion of First Amendment Protection

Posted on January 31, 2017

UPDATE: According to a new report by the New York Times, the number of state legislatures currently considering legislation to curb or more harshly punish protesting or related acts has risen to sixteen. Bills have been put forward in Tennessee and Florida similar to one under debate in North Dakota, which would grant drivers who hit demonstrators blocking a road or highway immunity from legal liability. Representatives in Mississippi also seek to deter the obstruction of roadways by proposing a fine of up to $10,000 for those convicted of intentionally blocking traffic. And lawmakers in North Carolina have drafted legislation which would broadly criminalize heated confrontations with state politicians, a move seen as a reaction to claims that “hecklers” harassed officials. For more information on the proliferation of legislation targeting lawful First Amendment activity, see the full report from the New York Times here

Over the last couple of weeks, bills have been introduced in at least ten state legislatures across the country which may curtail protections for protesters’ exercise of free speech. The proposals encompass a wide array of approaches and justifications for regulating peaceful assembly, but free speech advocates view them as encroachments on activists’ freedom to exercise their rights. While the Supreme Court has upheld some narrow limitations on free speech, mostly in regards to public safety (e.g. a restriction on shouting “fire” in a crowed theater), the proposed legislation is consistent with these limitations to varying degrees.

The most prolific tactic among the proposals, put forward in state houses in Minnesota, Michigan, Iowa, Washington, Indiana, and North Dakota, is to criminalize or more harshly penalize obstruction of highway traffic. Many of these are advanced on the grounds of the public safety of both demonstrators and motorists, but some of the more drastic measures raise doubts as to the legitimacy of this claim. For instance, the North Dakota bill would permit drivers to strike pedestrians if it can be shown to be accidental (which would almost certainly make such collisions more likely to occur), calling the pretext of public safety into serious question. An Indiana bill permitting law enforcement to clear protesters blocking traffic “by any means necessary” similarly casts doubts on the sincerity of professed public safety concerns, as this could open the door to abuse by empowering law enforcement to employ more aggressive use of force.

Proposed legislation in Colorado criminalizing any obstruction or delay in the use of oil or gas extraction equipment also raises concerns. Not only are its measures redundant in light of existing laws against vandalism and sabotage, but its wording leaves the bill open to broad interpretation which may result in heavy-handed repercussions for environmental activists. It should be noted that the author of this bill, Jerry Sonnenberg, has taken numerous campaign contributions from the Colorado Rural Electric Association, as well as some from the Colorado Oil & Gas Association. In 2008, he also tried to greatly reduce the amount of government environmental regulation of oil and gas companies.

Missouri state representatives have put forth a bill which would ban wearing any face coverings or masks that are not religious or medical in nature, limiting how peaceful demonstrators are allowed to express themselves. While such restrictions are conceivably to aid in law enforcement identification of criminal suspects, if demonstrations remain peaceful, as is required to invoke First Amendment protection, there would be no criminal suspects to be identified. Conversely, as criminals already often employ forms of facial concealment regardless of their legality, they are unlikely to change their behavior after the enactment of a statute prohibiting it. Thus, this would only have the effect of restricting expression, while providing no real benefit to law enforcement.

Finally, a North Carolina proposal to prohibit “heckling” politicians, authored in the wake of a supposed incident of such activity, would appear clearly unconstitutional as, barring threats of bodily harm, protesters are allowed to exclaim whatever statements they choose whenever they choose.

For a closer look at the state legislation, you can find a report from Reuters here, and one from The Intercept here.