Now that we’ve embarked on the winter of our discontent, millions of Americans find their civil liberties, health, and personal safety either severely compromised or under constant threat. Since January, the Trump administration and Republican Party’s actions have repeatedly illustrated that it has no respect for America’s democratic values or its people. Regardless of what Trump supporters believe in, these are not normal times. Supporting such an unrespectable man is inherently unacceptable. Not because I’m a liberal Democrat who doesn’t respect other people’s values or opinions I don’t agree with. Though that may be true to some extent, especially if their beliefs can be translated into policies undermining mine or anyone else’s quality of life, fundamental rights as human beings, and affordable access to basic needs and opportunities. And I am deeply convinced that Trump’s presidency as well as Republican politicians in the federal and state governments champion policies that do nothing but screw Americans’ lives in more ways than one. For many including myself, resistance to Trump and the GOP isn’t strictly due to politics nor is it in any way optional. Yet, though I have turned to blogging the occasional diatribe several times, many have staged protests such as taking to the streets numerous times. Over the past year, a historical level of protest and activism has spilled out into the nation’s parks, streets, and sidewalks. The Women’s March anchored in Washington D.C. with echoes across the nation, was perhaps the single largest day of protest in American history.
Nevertheless, since the end of 2016, a Republican lawmakers in more than 20 states have introduced wave of anti-protest bills in state legislatures. These pieces of legislation attempt to criminalize and penalize protesting in various ways such as increasing fines and jail sentences for protestors obstructing justice, tampering with or trespassing on infrastructure such as railways and pipelines, picketing, wearing masks, or refusing to leave an “unlawful protest.” Anti-protest bills in North Dakota, Tennessee, and Florida remove liability from drivers who “accidentally” hit and kill protestors. A bill in Indiana initially instructed police to clear protestors from highways by “any means necessary.” Proposed legislation in Washington and North Carolina label protests, “economic terrorism.” A bill in Minnesota charges policing costs to protestors. Bills in Michigan and North Carolina allows businesses to sue individuals protesting them. A bill in Arizona uses anti-racketeering laws to seize protestors’ assets. And a bill in Oregon would require public community colleges to expel students convicted of participating in a “violent riot.” As the ACLU’s Vera Eidelman said, “The proposed bills have been especially pervasive in states where protests flourished recently. This flood of bills represents an unprecedented level of hostility towards protesters in the 21st century. And many of these bills attack the right to speak out precisely where the Supreme Court has historically held it to be the most robust: in public parks, streets and sidewalks.” The United Nations has also decried the trend as “incompatible with US obligations under international human rights law” and that they represent “a worrying trend that could result in a detrimental impact on the rights to freedom of peaceful assembly and freedom of expression in the country.”
Despite that some media articles portray the recent increase in legislation targeting protesting due to large and almost daily demonstrations since Trump’s inauguration, this troubling trend actually began before he took office. Anti-protest bills in Washington, Minnesota, Michigan, and North Dakota were among the earliest introduced as a direct response to the labor movement lobbying to raise the minimum wage, Black Lives Matter demonstrations erupting following police killings, and resistance against the Dakota Access Pipeline by Indigenous water protectors at Standing Rock. Still, due to Trump’s 3 executive orders on policing, Republican domination of most state legislatures, the Trump administration’s pro-policing and pro-business attitude, and the rise of constant and spontaneous anti-Trump protests, you get an atmosphere where many powerful interests have stake in suppressing mass dissent. Of course, journalists, civil liberties experts, lawyers, and Democratic lawmakers have addressed that these bills criminalize peaceful protests and chill dissent. They note that penalties for these actions already exist. For instance, there isn’t a single city or county in the US that can’t already prosecute people for intentionally obstructing cars or pedestrians or for trespassing on private property. When a protest in Baton Rouge grew so large it spilled into the streets, the problem wasn’t that law enforcement couldn’t arrest anyone engaged in wrongdoing. In fact, quite the contrary since the police relied on existing trespass or obstruction laws to dramatically and unconstitutionally overcharge peaceful protestors. Not to mention, many existing laws always attempt to balance between the right to protest and the ability to drive. Also, anti-protest legislation is obviously unconstitutional since it violates the First Amendment protecting freedom of speech. Several of these bills have already been rejected such as those in Virginia, Michigan, and Arizona. But many still remain under consideration so anyone with an interest in protecting dissent must still remain vigilant and vigorously opposing those still on the table.
Yet, there are disturbing trends behind introducing such flagrantly unconstitutional legislation are false assumptions about protesting. For instance, Arizona’s anti-protest bill was explicitly based on the claim that protestors are paid to be in the streets. The “paid protestor myth has long existed as well as been codified in police training manual and Trump’s rhetoric. However, while seasoned activists mostly dismiss the paid protestor idea as a joke, the politicians introducing these anti-protest bills are deadly serious. And it’s mostly believed that liberal billionaire George Soros who usually distributes the protesting paychecks that don’t really exist. Despite his Open Society Foundation offering grants to those working on specific projects like civil liberties and criminal justice reform, there’s absolutely no evidence he’s paid people to be in the streets. Yet, that didn’t stop Washington State Senator Doug Eriksen specifically naming him and the Sierra Club as intended targets while introducing anti-protest legislation in his state. Another protest myth is behind a measure in Georgia’s pro-policing bill package which creates a new felony for protestors throwing “human or animal excreta” at police during demonstrations. Yet, though throwing literal shit at cops has often been cited in police manuals, there’s no evidence such incidents actually happened.
Additionally, another alarming trend besides punishing people with significant imprisonment and fines based on claims with no supporting evidence, anti-protest bills also attempt to redefine what a “riot” means so more actions can fall under this category and to link protesting to terrorism. Arizona’s proposal would’ve expanded the state’s anti-racketeering laws to designate rioting under organized crime. It also would’ve redefined rioting to include vandalism. Washington’s bill went a bit further to recharacterize protests as acts of “economic terrorism” like a non-violent demonstration hurting a company’s bottom line is being re-classified as a serious threat deserving severe punishment.
Of course, the recent anti-protest legislation surge isn’t the first time state legislatures tried to clamp down on effective demonstrations. In 2006, Congress passed The Animal Enterprise Terrorism Act which allegedly protects animal enterprises by defining “eco-terrorists” as animal and environmental activists who successfully pose a threat from businesses profiting from critters. This legislation tied protesting to “terrorism” that animal rights activists were imprisoned despite doing nothing more than running a website. After AETA, the conservative bill mill known as the American Legislative Exchange Council (ALEC) produced model legislation for the state level, expanding on AETA to further erode Constitutional rights and heavily punish animal rights and environmental activists. Hopefully, none of the proposed bills were passed by any state legislature.
However, we should really keep in mind that Republican lawmakers didn’t stop there. Instead, they used an incremental approach of inserting these failed bills’ key provisions into other legislation. Some of these can include using specific language like ecological terrorism or including the same penalties for a more limited number of offenses than the original legislation. So keep that lesson in mind when it comes to this round of unconstitutional and punitive legislation.
Fortunately, many of these current anti-protest bills are so obviously unconstitutional and based on outright lies that they’re unlikely to past. Already many have failed while others have been sent back to committees for revisions to make them more acceptable to lawmakers and the general public. And we should expect to see some parts of these bills introduced elsewhere should they fail in their current form. Even so, the fact so many of these anti-protest bills that have been introduced will likely have a chilling effect on dissent as well as create a climate of confusion and fear. Few people would be as willing to protest if they thought they could easily get arrested, fined, jailed, or even killed. The lack of clarity over where these bills stand in the legislative process, the low likelihood they’ll bass in their current forms, and the actual consequences if they do is enough to cast doubt among any would be protester.
Civil liberties advocates are now questioning which individuals or interest groups are behind this legislation wave targeting mass protest and the right to dissent. ALEC is most likely involved due to its anti-worker and anti-environmental platform which many of these protests are at odds with. Yet, ALEC’s model legislation strategy is commonplace and well-absorbed so it doesn’t need formal organization from above. Lawmakers could simply copy or adapt legislation from other states. Another possible organizing force behind anti-protest legislation are police unions and their coordinated efforts of law enforcement. Thanks to the Trump administration’s pro-policing stance, it’s not much of a surprise for law enforcement organizations prioritizing criminalizing protest activity.
Americans have a love-hate relationship with protesting. On one hand, it’s disruptive to normal activity as it’s supposed to be. But on the other hand, it’s an American tradition that’s helped to advance considerable progress on civil rights and improved living conditions. Many of what the US has accomplished to create a more perfect union was made possible thanks to public protests. Of course, not all of them have been peaceful such as the labor protests during the Gilded Age. Nevertheless, even without that, it’s possible I may not be able to attend college or write this blog today. Nevertheless, to criminalize peaceful protests is a flagrant violation of the First Amendment which guarantees freedom of speech, freedom of assembly, and freedom of petition. Criminalizing peaceful protest isn’t only unconstitutional, it’s un-American and unacceptable. In a representative democracy, when people come together to voice their dissent, they help create change. Today, state representatives should be celebrating that their constituents are getting out into the streets and making their voices heard. Yet, tragically, thanks to corporate campaign donors, state reps call their efforts “garbage” and are proposing bills that would criminalize protests or even put protestors’ lives in danger. Sure they won’t admit to it when promoting these bills. But that’s the ultimate aim. Legislators in states with significant protest activity should listen to those voices speaking out, especially in moments of disagreement. Not silence them.