First in Alarming Wave of Anti-Protest Bills Signed into Law as States Considering Similar Legislation Reaches 20

Posted on April 1, 2017

UPDATE (8/15/17): According to a new report by The Intercept, in the face of the tragic, deadly attack in Charlottesville by a driver deliberately ramming his vehicle into a crowd, state lawmakers in a handful of states have declined to withdrawn their support for bills which would grant immunity to drivers who hit protesters. Since the initial flurry of state legislatures moving to criminalize various forms of peaceful protest, beginning in the wake of the Anti-Dakota Access Pipeline movement, legislative bodies in Texas, North Carolina, North Dakota, Tennessee, and Rhode Island are still considering bills specifically extending legal protection to drivers who hit protesters.

While lawmakers in Texas and North Carolina argue that their respective bills provide clear exceptions for instances in which drivers willfully harm protesters, the wording of these exceptions in the two bills (and similar ones) are worded ambiguously enough to leave ample room for malleable and subjective interpretation. The mere fact that, should these bills be signed into law, juries in pertinent cases would be tasked with assessing the motive of the driver rather than their responsibility under traffic law would doubtless open the door to allowing many who would use their vehicles as weapons to evade punishment.

UPDATE (5/8/17): According to The Guardian, the number of bills, some of which have already been enacted, which stifle or criminalize First Amendment-protected protest activity has risen to 30 pieces of legislation in 20 states. In response to this alarming explosion in anti-speech legislation in the US, two special rapporteurs with the UN Office of the High Commissioner for Human Rights, David Kaye and Maina Kiai, have written a letter to the US State Department expressing their grave concerns. Among other assessments, the special rapporteurs state that the legislation targeting protesters is “incompatible with US obligations under international human rights law,” and that “this flood of bills represents an unprecedented level of hostility towards protesters in the 21st century.”

UPDATE (5/8/17): As reported in another new piece by The Intercept, Oklahoma Governor Mary Fallin has signed harsh new penalties for protesters whose demonstrations target energy sector facilities or infrastructure. Under the newly enacted statute, demonstrators found guilty of trespassing on an energy company’s property with the goal of, among other acts, merely disrupting or hindering the company’s operations would incur a felony conviction and a minimum fine of $10,000, with a maximum possible sentence of 10 years in prison and/or fine of $100,000 should the court rule that the individual successfully sabotaged company equipment. Additionally, groups affiliated with a convicted individual could face fines of up to $1 million. Along with their concern for the astonishingly severe punishment that individual protesters could suffer for something as comparatively benign as blocking areas or equipment at the facility, thereby stalling production, free speech advocates worry that activist movements and organizations could be hit with crippling fines if a single individual attending their demonstration acts of their own accord in violation of the statute. An accompanying bill which has passed the Oklahoma House, but has yet to reach the governor’s desk, would allow for prosecution for “vicarious liability” of any organization or individual who provides support or aid for an individual convicted under the foregoing law. Free speech defenders fear this could be used to target those who contribute funds to post bail or provide legal assistance to a protester charged with disrupting energy company operations.

UPDATE (4/30/17): The North Carolina House of Representatives has also passed a bill which would indemnify drivers who hit pedestrians who are currently engaged in protest activities under certain conditions. The bill, which comes in the wake of similar proposed (though defeated) legislation in North Dakota in the wake of the anti-Dakota Access Pipeline demonstrations, would shield drivers from criminal liability if they strike a protester with their vehicle and the protest activity the protester is participating in has not secured a proper permit. However, many First Amendment rights advocates see it as a response to a favored tactic of the Black Lives Matter movement in which demonstrators block highways and other roads to draw attention to police brutality, and they fear that such a law, if passed, could encourage the movement’s opponents to abuse the measure and intentionally hit protesters as a means of reprisal, though it contains language revoking immunity to prosecution for drivers whose actions are deemed “willful or wanton.” While the bill is likely to be vetoed by North Carolina’s Democratic Governor Roy Cooper, the bill has enough support to make a veto override by the legislature a distinct possibility.

UPDATE (4/5/17): According to a new report from The Intercept, the Minnesota State House passed a bill containing a provision, which civil liberties advocates fear will produce a chilling effect on peaceful protest, that classifies pedestrians blocking a freeway as a gross misdemeanor punishable by up to a year in  jail and/or a $3,000 fine. The measure was passed as part of a public safety budget bill, which the state Senate has also passed independently, and will remain in the version to be presented in the conference committee after House Democrats unsuccessfully attempted to remove it. While there is a chance that the conference committee could strike the provision, its passage or defeat ultimately rests with Democratic Governor Mark Dayton. The bill’s passage by the legislature marks a devastating blow to Minnesota activists and organizers, who have come to rely on the tactic of blocking highway traffic to bring attention to causes which they believe would otherwise be ignored. 

In a previous piece, the Chicago Committee to Defend the Bill of Rights underscored the present campaign by state legislatures to greatly curtail the ability of demonstrators to exercise their First Amendment rights to free speech and peaceful assembly. As the number of statehouses considering measures restricting protest activities rises to an alarming 19 states, two UN human rights investigators whose work focuses on free expression have voiced grave concerns of a growing trend toward severely limiting the rights of citizens to free speech and assembly in the US.

One proposed measure the investigators found particularly worrying is a bill in Minnesota which would criminalize any protesters taking part in a demonstration in which some participants engaged in violence. Not only is such guilt-by-association reasoning unconscionable on account of its egregious overreach, as it could condemn countless peaceful demonstrators with no inclinations or tolerance for violence, but it would leave all assemblies of peaceful activists susceptible to infiltration by individuals or entities, such as law enforcement or intelligence services, who seek to discredit the group. There is already evidence that local police departments attend protests undercover, as happened in Oakland during a Black Lives Matter protest, and recent reporting on the surveillance and investigatory practices of the FBI, which CCDBR has also highlighted, shows that the policies governing undercover infiltration of activist circles and organizations are extremely lax. This is not to suggest that it is the explicit aim or policy of local, state, and federal law enforcement to discredit otherwise peaceful activist movements, but with this dearth of regulations it is entirely possible that an officer, agent, or informant working in the service of law enforcement could abuse their privileged position and act alone to the detriment of peaceful organizers. 

Additionally, the the investigators specifically noted the dangers which legislation under consideration in several states poses to environmental protests. As many of these bills emerged in the wake of demonstrations against the Dakota Access Pipeline in North Dakota, and some refer explicitly to activities which can be construed as disrupting the business of the energy industry, the officials expressed fear at a chilling effect on environmentally focused protest activities. 

The rapid proliferation of legislation, across several states and by widely varying means, limiting the scope of free speech activities is unprecedented. If even a fraction of these measures passes, it would represent an extremely troubling trend of eroding First Amendment protections, and the reversal of each measure would require legal challenge in the high courts, likely at the federal level. In short, if even one of the proposed laws takes root, it will require considerable and concerted effort to uproot, while presenting only the distinct possibility of spreading. 

You can find the full story from Reuters here, and CCDBR’s previous piece on anti-protest legislation here