Unfortunately, that we do not see efforts to censor speech coming from the White House does not mean that such efforts are not actually happening in America. One need merely look to the statehouses for examples of this public-health crisis being used to implement measures that criminalize or impose civil liability on otherwise lawful forms of public dissent. A cynical political aphorism posits that one should “never let a good crisis go to waste,” and some state governments appear to be taking this maxim to heart. Invoking the need to protect “essential” or “critical” fossil-fuel infrastructure, several states recently have adopted laws that threaten environmental-protest organizers with various forms of vicarious civil and criminal liability.
Last month, Kentucky, South Dakota, and West Virginia all adopted statutes that criminalize protests of fossil-fuel development and also enable energy companies to seek damages from protest organizers. The newly enacted laws designate “natural gas or petroleum pipelines” as “key infrastructure assets” and criminalize “tampering with, impeding, or inhibiting operations of a key infrastructure asset.” The Kentucky law, passed by a GOP-controlled legislature and signed into law by the state’s Democratic governor, Andy Beshear, provides both criminal and civil penalties for anyone who damages property or for any person or organization that “directs or causes a person to violate” the law.
West Virginia’s new law is substantially similar. The West Virginia Critical Infrastructure Protection Act threatens environmental protesters with both fines and criminal sanctions. At a state legislative committee’s public hearing on the bill, Reverend Jim Lewis, an Episcopal minister, correctly observed, “This bill is designed to chill protesters.” Like Kentucky’s new law, the West Virginia statute makes “conspiring” to cause or inciting trespass or damage to fossil-fuel facilities a legal basis for imposing civil and criminal liability on protest organizers (including mainstream public-interest organizations). Accordingly, this law, like Kentucky’s, will have a profound chilling effect on perfectly lawful speech.
South Dakota enacted two laws: S.B. 151, which mirrors the Kentucky and West Virginia laws by declaring oil and natural-gas facilities to be “critical infrastructure,” and H.B. 1117, which creates civil and criminal penalties for incitement to riot as well as civil liability for both “riot” and “riot boosting” (which applies when a person “does not personally participate in any riot but directs, advises, encourages, or solicits other persons” to riot). H.B. 1117 does provide that the law should not be used “to prevent the peaceable assembly of persons for lawful purposes of protest or petition” or “to include the oral or written advocacy of ideas or expression of belief that does not urge the commission of an act or conduct of imminent force or violence.” However, if a speaker at a protest issues a general call “to stop this pipeline project now!,” and someone attending the rally subsequently trespasses on a pipeline work site, the terms of the South Dakota laws are sufficiently open-ended regarding joint and several liability that the pipeline company might be able to pursue a civil claim against the rally organizers for either “riot boosting” or conspiracy.