Following the wave of abolitionist-led racial justice uprisings and protests that began after the murder of George Floyd in 2020, several state legislatures have introduced laws to curtail civil demonstrations. From bills creating mandatory sanctions for damaging college campuses to ones that would create liability for organizations that provide materials or resources to people in a protest that gets out of hand, conservative legislators are trying to stifle the right to protest. These bills would have a disproportionate effect on BIPOC activists trying to bring attention to the issues faced by marginalized communities.
“These are bills passed after protests and in many cases with explicit language from lawmakers that protests are what they are targeting,” said Elly Page, senior legal adviser with the International Center for Not-for-Profit Law.
The ICNL U.S. Protest Law Tracker has documented a stream of anti-protest laws initiated at the state and federal level since January 2017. Most of the laws that have passed were designed in response to protests by BIPOC activists, including Indigenous demonstrations against the Dakota Access Pipeline and protests against systemic anti-Blackness in the wake of the police killings of Floyd, Breonna Taylor, and Rayshard Brooks. Conservative lobbying groups such as the American Legislative Exchange Council and the Association of Oil Pipelines designed many of them. A Greenpeace report found that associations tied to police and private prison companies contributed $343,602 to sponsors of 2021 anti-protest legislation.
In the last two years, several states, including Arkansas, Kansas, and Montana, have passed laws creating new penalties for protest activity taking place near oil and gas pipelines. Other laws drastically increase penalties—including prison time—for nonviolent disruption. Alabama permitted cities in Lauderdale County to charge protest organizers permit fees and extended liability for rioting to nonprofit organizations supporting environmental protests. Alabama and Florida have passed laws allowing local authorities to charge protest organizers for the cost of monitoring a protest. In Iowa and Oklahoma, new laws grant immunity for motorists who hit protesters while “fleeing from a riot.”
One of the main problems behind laws that enact penalties for rioting is that the term “riot” itself—often vaguely defined as a group engaging in “tumultuous and violent conduct”—is interpreted inconsistently. Even when legislators specify that certain action is only to be taken against protesters in the case of rioting, police, prosecutors, and government officials often have leeway to decide when a protest becomes a riot, giving them the power to shut down speech they dislike. In the context of riot laws that are vague and subject to discretion, anti-protest laws can be even more dangerous.
While many of the laws still pending in the U.S. Protest Law Tracker will not survive at the end of the year as new legislative sessions begin in 2023, a few laws still have a chance of squeaking through the twilighting current session or being reintroduced in future sessions. Simultaneously, more institutions and localities are enforcing anti-protest laws already on the books.
Punishing social justice organizations
Support from established organizations can be an important tool in successfully implementing civil demonstrations, making that resource a target for anti-protest legislation. If passed, Ohio’s HB 109 would increase penalties for protesters found to be blocking traffic and create new liability for organizations participating in or supporting a protest deemed to be a riot. Organizations that provide “material support or resources” to individuals or groups that “plan, prepare, carry out, or aid” a riot could also be criminally and civilly liable for engaging in rioting. Gary Daniels, chief lobbyist of the Ohio chapter of the American Civil Liberties Union, said that the second provision would likely lead to a chilling effect where organizations avoid participation in public demonstrations due to a fear of liability.
“The language is so vague, and it’s so broad that it can rope in all kinds of otherwise protected free speech activity with the enhanced penalties that come under this, including roping in Ohio’s corrupt activity law, so your organization can potentially be shut down and have all its assets seized as a result,” said Daniels.
The phrase “material support or resources” originally came from anti-terrorism legislation and was used to target suspected foreign terrorists after 9/11. The law prohibits funding or supporting terrorists or terrorism and has been interpreted broadly by the Supreme Court to ban even advising or assisting a U.S.-designated terrorist organization in negotiating to end a conflict. Through HB 109’s anti-terrorism language of “material support or resources,” even advising or assisting a protest declared to be a riot could result in criminal penalties.
“I can promise that what would happen as a result of this passing and this language is that you’ll have certain individuals and organizations that will just refuse to speak on these sorts of things because they will be so afraid that the authorities will come after them, seize their assets, shut down their organizations, fine them, any number of other things,” said Daniels.
The ACLU has advocated against HB 109, testifying in the legislature, encouraging others to testify, sending out email action alerts, and raising awareness about the bill, which has passed the Ohio House of Representatives. Ohio Citizen Action and other progressive organizing groups have also raised awareness about the bill and its potential impact on the ability of social activists to speak out freely.
“The security and the safety of our members and the people participating in our actions are our number-one priority,” said Grace Zhang, an organizer with Ohio Youth for Climate Justice. “Bills like this make it much more difficult for us to undertake action while still protecting our members if they don’t want to escalate or take on action that would threaten them.”
Restricting campus speech
College campuses are also seeing significant threats to freedom of speech. In 2021, the Illinois legislature introduced HB 3409, a law that, if passed, would create mandatory sanctions for campus protesters perceived to infringe upon others’ speech. This would result in compulsory disciplinary action against students for protesting a campus speaker.
In October, members of the Graduate Employees’ Organization at the University of Illinois Urbana-Champaign interrupted the Chancellor’s State of the University address to protest what they saw as the university’s slow approach to the contract negotiation process. UIUC students protested again when self-described theocratic fascist Matt Walsh came to campus for a screening of his transphobic documentary. Under a law such as HB 3409, a student who participated in such protests more than once would face a minimum one-year suspension or expulsion.
Patrick Hill, who participated in GEO’s protest at the State of the University address, said that suspension and expulsion would be severely disproportionate responses to the kind of actions that students have organized. If such a law passed, he said the university administration would try to figure out how to use it to curtail union action at critical moments. While the law is directed at prohibiting students from “infringing on the expressive rights of others” rather than campus protest broadly, Hill said that disruptive protest has a unique ability to galvanize attention, and creating such drastic sanctions for such activity would be unfair.
“Being in the room lets them know that we are taking this seriously and that we want something to be done,” said Hill. “It would be something if we had a protest outside or a rally, and that’s cool for morale, but that doesn’t put any pressure or sense of urgency onto the administration.”
Some universities have taken action against student protesters without such guidance from the legislature. After students at the University of Florida protested at a question-and-answer forum with Sen. Ben Sasse, a finalist in the school’s presidential search, the university announced it would begin enforcing a prohibition against indoor protests. At Marquette University, administrators removed the president of student government and other student leaders from their positions after a protest at the freshman convocation event. The students were protesting against a lack of resources for students of color.
Criminalizing disruptive protest
Other states have introduced laws that would criminalize protests deemed to be disruptive, including heightening penalties for activists who block roads. Soon after climate protesters from Declare Emergency shut down several lanes of traffic in Silver Spring, Maryland, in July, Sen. Marco Rubio introduced S. 4825, which would create new penalties for protesters walking or standing on interstate highways. Massachusetts and New Jersey have introduced similar bills.
Tariq Alkebu-Lan, one of the protesters involved in and arrested during the civil disobedience in Silver Spring, said that bills that further criminalize highway protests would be a severe infringement on freedom of speech. While shutting down highways and other disruptive protests are controversial, Alkebu-Lan pointed out that such tactics were critical to the success of the Civil Rights Movement and the Women’s Suffrage Movement.
“In order to get our leaders to do the right thing and actually give the people their rights, we have to disrupt things,” said Alkebu-Lan “It’s not enough to write letters to our congresspeople; it’s not enough to just get out the vote or support a candidate. Disruption seems to be necessary.”
In 1964, the Brooklyn chapter of the Congress of Racial Equality blocked highways leading to the World’s Fair to protest racial discrimination. Suffragists picketing in front of the White House in the early 20th century were often arrested on criminal charges of obstructing traffic. More recently, the 2018 Yellow Vests Protests in France used traffic blockades as a tool of protesting unfair taxation, forcing President Emmanuel Macron to cancel a fuel tax increase.
“It’s a historical pattern for Americans to be in the streets and disrupting the modern-day life of those who feel they are not affected by the injustice that’s going on,” said Alkebu-Lan. “As bad as we disrupted their lives, if humanity continues this carbon emissions rate and the biosphere continues to break down, the disruption to commerce, to people’s lives, is going to be tens to a hundred times worse.”
Australia and the United Kingdom have recently passed draconian anti-protest laws aimed at blocking nonviolent action by environmental activists. New legislation in Australia imposes long sentences and hefty fines on climate activists deemed to be interrupting traffic, such as Deanna “Violet” Coco, who was recently sentenced to 15 months in prison for participating in a protest causing a 25-minute traffic jam. The U.K. has made it increasingly difficult to engage in public protests, with several anti-monarchy protesters recently arrested for reasons as spurious as making too much noise. The U.K. is now considering anti-protest laws similar to what Australia has introduced to target environment-related disruptions.
Working in a harsher protest climate
While the government is allowed to place reasonable restrictions on the time, place, and manner of protests to ensure public safety, Page said that laws making civil disobedience a felony are problems. The historical precedent of BIPOC, in particular, using nonviolent disruption could also put them at greater risk of facing charges.
“Thinking about how protests involving communities of color are policed differently and more harshly, more likely to face arrests and dispersals and the like, you see these laws likely being applied disproportionately to communities of color,” said Page.
Article 19, an international human rights organization, has issued recommendations to protesters on how to combat the impact of anti-protest laws. Participating in “know your rights” training, documenting human rights violations that occur at protests, and protecting marginalized community members when they are threatened can all help to mitigate the effect of increased criminalization of protest.
When evaluating the state of the freedom to protest in the U.S., Article 19 notes the right to peaceful assembly is “foundational to all other rights,” largely because of its effectiveness as a tool to create change successfully, particularly for marginalized groups. The number of laws that aim to curtail advocates’ ability to protest only underscores this point, and even though many of the current crop of proposed laws may fail, the fact they were up for consideration in the first place is a warning sign to many advocates. As the report notes, “a society that criminalizes peaceful assembly can no longer be accurately called a democratic state.”