The First Amendment is no good if it is used to protect one side of the political spectrum but disregarded for the other. Protests in response to the killing of George Floyd have been met with aggressive police tactics, including spraying tear gas and rubber bullets, and sweeping up journalists, elected officials, and hundreds of protesters in major cities such as Houston, New York, and Chicago in mass arrests. The totality of the law-enforcement response to these protests stands in stark contrast to what officers did during anti-lockdown demonstrations in which conservative protesters armed with guns stormed state capitols and walked on public roadways: nothing.
This First Amendment inconsistency comes straight from the top. The president in a tweet this past week called Minneapolis protesters “thugs” and has previously urged his supporters to “knock the crap out” of demonstrators he opposes. He has admitted, “I think it’s embarrassing for the country to allow protesters.” But he calls gun-toting protesters at state capitols “very good people.” Disturbingly, the president’s hostility toward demonstrators he disagrees with has not just influenced the protests this week; it is becoming a policy reality on the state level, where legislators have attempted to introduce a wave of anti-protest legislation over the past five years.
In a new report from PEN America, the organization where I’m the director of U.S. free expression programs, my colleagues and I find that in 2015 and 2016, prior to Trump’s presidency, bills that would restrict or otherwise criminalize demonstrations were introduced just six times and none became law. But after the 2016 election, the number of anti-protest proposals ballooned to 56 in 2017, 17 in 2018, and 37 in 2019—23 eventually became law over the course of those three years. Most of these bills heighten penalties for protesters who demonstrate near critical-infrastructure sites, march on public roadways, or otherwise engage in conduct that law-enforcement officials deem “unlawful.” Some require protesters to pay for law-enforcement time, others shield officers from liability if they harm protesters, and still others criminalize mask wearing. Taken together, these bills are slowly trying to rewrite the definition of protest, to redraw the boundaries around lawful conduct and narrow people’s First Amendment rights depending on who’s speaking.
Like the president, state legislators who advance these bills aren’t doing so out of any genuine concern for protecting speech or public safety, as they sometimes claim. In fact, our analysis finds that legislators often explicitly introduce proposals to limit the rights of people whose positions they dislike. That’s not adherence to the First Amendment, which protects the rights of those we disagree with—it’s adherence to self-interest. Specifically, we find a direct correlation between recent years’ astonishing rise in collective action, particularly by Black Lives Matter and Standing Rock activists, and a rise in attempts to delegitimize and criminalize those very demonstrations.
From session to session and state to state, these bills look remarkably similar. That’s no coincidence. In January 2018, the American Legislative Exchange Council, or ALEC, published a model Critical Infrastructure Protection Act, which drew heavily from two Oklahoma anti-trespass bills, H.B. 1123 and H.B. 2128. This bill defined critical infrastructure to include oil pipelines and dramatically raised the penalties for “trespass” upon such property. Since then, more than 20 bills modeled on it have also passed. Activists are challenging one law in Louisiana that targets protests near gas and oil pipelines. House Bill 727 passed in 2018 and allows for felony charges of up to five years’ imprisonment for protesters. This, and bills like it, clearly aim to criminalize mass-protest actions such as those against the Dakota Access Pipeline.
The similarities are also not coincidental because quite literally the same legislators keep trying the same tactics, even after courts swat away their misguided bills. These “zombie” bills refuse to die at the end of the legislative session, and keep returning to haunt our constitutional rights. Legislators’s doggedness is appalling: In South Dakota, a bill was rushed through the legislature and signed quickly into law last year, establishing a civil action to sue “riot boosters,” defined as anyone who “directs, advises, encourages, or solicits” others toward “acts of force or violence.” This left the door open for police to arrest people for “encouraging” violence through First Amendment–protected expression, such as chanting common protest slogans like “No justice, no peace” or even leading trainings of prospective protesters about their rights. A federal court struck the law down as unconstitutional, but state legislators were quick to introduce a redrafted bill just months later, tweaked to extend the crime of trespass to critical-infrastructure facilities. That bill has already passed and been signed into law by the governor.
All told, 116 bills to limit protest rights have been introduced since 2015, and 15 states have passed some form of anti-protest proposal, some passing several. And already this legislative session, we’re tracking 16 similar bills that are working their way through state capitols—despite the obviously more pressing public-health and public-policy concerns.
Defenders of these bills often point to the fact that America has routinely set limits on the Bill of Rights—yelling “fire” in crowded theaters and all that. And they argue that billing protesters for cleanup or security costs is sensible when government budgets are tight. But make no mistake: These laws are crafted to intimidate prospective protesters. When someone might face disproportionate criminal charges, liability for the actions of others, extra police attention for what they wear, or get in trouble simply for standing in the “wrong” place, they might decide to forgo protesting altogether. This is not just a limitation of the First Amendment. It’s a chipping away at everything the First Amendment stands for.
In no uncertain terms, the assault on the right to protest is graver for those who disagree with the establishment. What sorts of state laws will be written in response to the demonstrations now spreading across the country? Whose rights will be protected, and whose diminished? The unfortunate likelihood is that those laws will place a heavy burden on civilians to weigh their civic interest in exercising First Amendment rights against the very real potential of being arrested or jailed. That’s a betrayal of a First Amendment that works for all.