Traci Yoder is the National Lawyers Guild’s Director of Research and Education. Republished with permission from the National Lawyers Guild.
In recent weeks, multiple articles have pointed to the wave of new anti-protesting bills introduced in state legislatures since the end of 2016. The Intercept, Washington Post, AlterNet, Democracy Now!, and other news outlets have provided overviews of the types of bills under consideration, the potential chilling effect on protests, and the unconstitutional nature of these measures. Because NLG has a long history of protecting the right to dissent, we offer the following summary and observations based on decades of experience providing legal support to social movements and monitoring the policing of protests.
The current round of legislation—introduced by Republican lawmakers in 19 states—attempts to criminalize and penalize protesting in various ways. Many states are drafting bills to increase fines and jail sentences for protesters obstructing traffic (Minnesota, Washington, South Dakota, Indiana, Florida, Mississippi, Iowa), tampering with or trespassing on infrastructure such as railways and pipelines (Colorado, Oklahoma), picketing (Michigan, Arkansas), wearing masks (Missouri), or refusing to leave an “unlawful protest” (Virginia). Particularly alarming are bills removing liability from drivers who “accidentally” hit and kill protesters (North Dakota, Tennessee, Florida). A bill in Indiana initially instructed police to clear protesters from highways by “any means necessary.” Other legislation has proposed labeling protests as “economic terrorism” (Washington, North Carolina), charging costs of policing to protesters and organizers (Minnesota), allowing businesses to sue individuals protesting them (Michigan, Colorado), and using anti-racketeering laws to seize assets of protesters (Arizona). A bill in Oregon would require public community colleges to expel students convicted of participating in a “violent riot.”
Some articles portray the recent increase in legislation targeting protesting as a result of the large and almost daily demonstrations since the inauguration of Donald Trump; however, others are careful to note that this trend began before Trump took office. Bills in Washington, Minnesota, Michigan, and North Dakota (some of the earliest) were clearly introduced as a direct response to the labor movement to raise the minimum wage, the resistance by Indigenous water protectors at Standing Rock, and demonstrations that erupted in relation to police killings as part of the Black Lives Matter movement.
While this trend of targeting protesters began before Trump, the current conditions are favorable to repression of First Amendment activity. Taken together, Trump’s three executive orders on policing, the large number of state legislatures dominated by Republicans, the pro-policing and pro-business attitude of the current administration, and the constant and growing spontaneous demonstrations protesting Trump all combine to produce an atmosphere in which many powerful interests have a stake in suppressing mass dissent.
Journalists, lawyers, civil liberties experts, and Democratic lawmakers have addressed the problems with these bills: the criminalization of peaceful protests, the chilling of dissent, the fact that penalties for these actions already exist, and the decidedly unconstitutional nature of the proposals. As a result, several bills have already been rejected, including those in Michigan, Virginia, and Arizona. However, many still remain under consideration, and those with an interest in protecting the right to dissent must be vigilant about tracking and vigorously opposing the remainder.
Some disturbing trends are emerging which are related to false assumptions about protesters upon which the legislation is premised. Arizona’s SB1142, for example, was explicitly based on the claim that protesters are paid to be in the streets. The myth of the “paid protester,” which has been codified in police training manuals and the rhetoric of Trump, has long existed. To seasoned activists the idea of paid/professional protesters is mostly seen as a joke, but the politicians introducing these bills are deadly serious.
The myth of paid protesters is almost always tied to the figure of billionaire George Soros, who is regularly accused of being the one issuing these fictive paychecks. While Soros’ Open Society Foundation does offer grants to individuals and organizations to work on specific projects related to civil liberties and criminal justice reform, there is no evidence that he has ever paid protesters to be in the streets. Yet while introducing SB5009, Washington Senator Doug Eriksen specifically named Soros, as well as the Sierra Club, as intended targets of the legislation. Another protest myth is clearly behind one measure in Georgia’s package of pro-policing laws—SB160 creates a new felony offense for protesters who throw “human or animal excreta” at police during demonstrations (a claimed occurrence that has often been cited in policing manuals and yet has no evidence to back it up).
In addition to the alarming trend of legislation punishing people with significant imprisonment and fines based on claims with no supporting evidence, these bills are also attempting to redefine the meaning of “riot” to allow more actions to fall under this category and to link protesting to terrorism. Arizona’s proposed bill would have expanded the state’s racketeering laws to include rioting under organized crime, and redefined rioting to include any acts of property destruction. Washington’s bill re-conceptualizing protests as acts of “economic terrorism” is another example of how non-violent protests are being re-classified as serious threats that deserves severe punishment.
The recent surge of legislation targeting protesters and protest organizers is not the first time state legislators have attempted to neutralize and punish effective protests. The Animal Enterprise Terrorism Act (AETA) was proposed in 2003 and passed by Congress in 2006. The initial proposal was followed by a series of similar but far more extreme bills at the state level. AETA ostensibly protects animal enterprises by creating the concept of “eco-terrorists”—animal and environmental activists who successfully cause a financial threat to businesses profiting from animals. This legislation explicitly tied protesting to “terrorism”, and led to the imprisonment of animal rights activists who had done nothing more than administer a website.
After AETA was introduced, the conservative organization 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 protesters. ALEC’s structure and purpose is designed to help corporate representatives craft model bills that are then introduced by conservative lawmakers in multiple state legislatures simultaneously. The organization came to the public’s attention most noticeably five years ago when it was discovered that they were behind the “Stand Your Ground” legislation used to justify the murder of Trayvon Martin.
The NLG analyzed and described valuable lessons learned through the examples of AETA and ALEC. First, it is important to note that none of the proposed legislation was ever passed at the state level. However, it is just as crucial to keep in mind that Republican lawmakers did not stop there. Instead, they moved to an incremental approach that inserted key provisions of the failed bills into other legislation, for example by using specific language in other bills (like ecological terrorism) or including the same penalties for a more limited number of offenses than the original bills. As we watch this new round of anti-protesting bills, we must keep this lesson in mind and consistently fight all attempts to pass unconstitutional and punitive legislation.
Many of these bills are so obviously unconstitutional, or based on such false premises, that they are unlikely to pass. Indeed, many have already failed. Others have been sent back to committees for revisions to make the bills more palatable to lawmakers and the general public. As we saw from the AETA/ALEC example, we should expect to see parts of these bills introduced elsewhere should they fail in their current form.
The fact that so many similar bills have been introduced—combined with the spate of news articles that do not always highlight that these are proposed bills that have not yet passed—creates an atmosphere of confusion and fear. The knowledge that these bills are being considered in many state legislatures, regardless of their status, is likely to have a chilling effect on dissent. Few people would be as willing to protest if they thought they could easily be arrested, fined, imprisoned, or even killed. The lack of clarity over where bills stand in the legislative process, the likelihood they will pass in their current forms, and the actual consequences if they do is already enough to cast doubts among those who intend to protest.
Civil liberties advocates are clearly questioning which individuals or interest groups are behind this wave of legislation all targeting mass protests and the right to dissent at the same moment. Given its past experience in pushing conservative model legislation, ALEC would be an obvious suspect. While there is no indication that anti-protest legislation is on ALEC’s current agenda, it is worth noting that the kinds of protests being targeted are all in conflict with ALEC’s anti- worker and anti-environmental platform. However, the model legislation strategy introduced and perfected by ALEC is at this point a commonplace and well-absorbed pattern that does not necessarily need formal organization from above. It could be enough for lawmakers to simply copy or adapt legislation already introduced in other states. Another possible organizing force behind such legislation are police unions, and the coordinated efforts of law enforcement as exemplified in the Police Executive Research Forum. Given the pro-policing approach of the Trump administration, it would be unsurprising if law enforcement organizations prioritized criminalizing protest activity.
As civil and human rights advocates face the challenges of the new administration, it is imperative to not be demoralized or frightened into ceding the streets in the face of legislative attempts to curb mass protest. We must instead continue to organize and to keep a close watch on these bills as they emerge in state and federal legislatures, and to push back at every level. Public outcry and widespread criticism against the Arizona bill, for example, led the Republican speaker of the house to drop the legislation. Together we have the power to challenge and stop these bills before they are passed into law. Now more than ever, we must protect our right to dissent publicly and to disrupt business as usual. At very least, these bills indicate that protesting has certainly become a threat again.