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.