State Legislators Curtail Protest Rights

Since the Nov. 8 presidential election, legislatures in 18 states have either introduced or voted to approve legislation with the effect of curtailing mass protests. The proposed laws coincide with a wave of media-publicized protests, such as those practiced by Black Lives Matter activists and Dakota Access pipeline demonstrators. Perhaps emboldened by President Trump’s admonition of progressives supposedly “paid” to protest, lawmakers are now seeking to criminalize the very tactics that have rendered these demonstrations newsworthy. A majority of bills under consideration would increase penalties for protesters charged with blocking highway traffic, accusations that have been levied against activists associated with both movements. Ostensibly introduced to protect the safety of motorists and protesters alike, the restrictive legislation is, in reality, intended to clamp down on free speech and delegitimize protest movements.

Legislators in Indiana, Minnesota and Mississippi have designed the most punitive bills to curb highway protest. If enacted, the proposed Mississippi bill would make obstruction of traffic a felony punishable by a $10,000 fine and a five-year prison sentence. Lawmakers in Indiana are debating a bill that allows police to issue fines for highway protests, while Minnesota may increase fines for protesters blocking highways and allow jurisdictions to charge protesters for the costs of policing the protests. Experts say that because social media has spurred the rapid organization of large-scale protests, legislators must revise existing laws to address the influx of demonstration participants.

Lee Rowland, a senior attorney with the ACLU, believes that legislators have not introduced new bills  “because of some gap in the law.” She notes that “every single city and county in the United States” already has laws on the books against obstructing traffic on busy roads. The legislation, Rowland says, is meant to “increase the penalties for protest-related activity to the point that it results in self-censorship among protesters who have every intention to obey the law.” Hefty financial penalties may impact the scope and make-up of demonstrations. Lower and middle-income Americans, unable to afford the protest fine or legal counsel to avoid felony charges, may self-censor and fail to turn out to protest altogether. Protests without a diverse base may emphasize issues of particular salience to empowered groups at the expense of the traditionally disempowered.

In defense of the proposed legislation, state lawmakers tout the argument that highway demonstrations constitute a threat to public safety. State Senator George B. Gainer, a Florida Republican who has proposed raising the fines for protesters who block traffic in his own state, relies upon public safety rhetoric to bolster his claims. “We support the First Amendment altogether and want people to get out and do what they want,” he said. “But they shouldn’t endanger themselves or others.”

On its surface, this argument is legitimate. Highway demonstrations not only place protesters and motorists in danger but also could delay law enforcement and medical personnel from responding to life threatening situations. These arguments, however, fail to address the essential purpose of any protest. Protests are meant to disrupt. Sustained and organized, they foment tension by forcing groups to confront issues they have the privilege to ignore. In the words of Dr. Martin Luther King, Jr., protests “dramatize the issue so that it can no longer be ignored.” Protesters may not successfully “dramatize” an issue without first engaging in direct action that inconveniences and disrupts the social fabric.

The more outrageous defenses of the proposed bill have historical roots. Speaking to The Capital Times, Arizona State Senator Kavanaugh portrayed the legislation in his state as an attack against “full-time, almost professional agent-provocateurs that attempt to create public disorder.” According to Douglas McAdam, a professor of sociology at Stanford University, this rhetoric “is standard operating procedure for movement opponents.”  Civil rights workers, he notes, were described by opponents as “outside agitators, and the tea party was dismissed as an ‘AstroTurf’ phenomenon rather than a legitimate ‘grassroots’ movement.”

Claiming that protests are somehow staged, Republicans create a false perception that the issues they oppose are similarly unimportant to a vast majority of ordinary Americans. A denial of the uptick in protests and the legitimate purpose of demonstration tactics, however, represents nothing more than a set of alternative facts.