State Governments Are Trying to Crack Down on Protests

Photo of resistance at Standing Rock by Avery L. White for VICE

In January, a bill was introduced to the North Dakota Legislative Assembly that would dismiss charges in cases where drivers ran over protesters with—so long as the protester was standing in a roadway and the collision was accidental. In North Carolina, after a pugnacious gubernatorial election, State Senator Dan Bishop told the Charlotte News & Observer that he would bring a bill to the floor that would "make it a crime to threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties." In Minnesota, state officials are currently mulling over a bill that would indiscriminately hold demonstrators liable if their protest requires a police response.

Seemingly everywhere, Republican politicians are denouncing the protests that have swept the country since Donald Trump's election. Indiana state senator Jim Tomes is advocating for legislation that allows police to clear out a street "by any means necessary"; in November, Washington state senator Doug Ericksen labeled anti-Trump demonstrations "economic terrorism." Most recently, Arizona's state senate voted to pass SB1142, which would allow police to seize assets of protesters who plan or participate in demonstrations that turn violent.

But the effort to legislate against protests runs deeper than a desire to clamp down on the anti-Trump resistance. North Carolina, Minnesota, and North Dakota are all in the midst of major controversies—North Carolina with its transgender bathroom law, North Dakota with Standing Rock, and Minnesota with the ongoing Black Lives Matter protests following the police shooting of Philando Castile. Though none of these bills have become law, their ubiquity speaks to how free legislators feel when it comes to proposing crackdowns on protests.

"Is this spate of anti-protest bills a coincidence?" the ACLU asked recently on its website. "We think not."

"There are untold amounts of terrible legislation that get proposed that doesn't see the light of day," says Lee Rowland, senior staff attorney in the ACLU's Speech, Privacy, and Technology Project. "That said, what I think is different about this year is the coordinated onslaught of pieces of legislation that clearly target protests, particularly in states that have seen pretty historic levels of activism."

"State representatives around the country should be celebrating the fact that their constituents are getting out into the streets and making their voices heard," Rowland wrote of the targeted protests on the ACLU's site. "Instead, state representatives are calling these efforts 'garbage' and proposing bill after bill that would criminalize protest or even put the lives of protestors in danger."

With the exception of the North Carolina efforts (which Rowland calls "comically unconstitutional"), all of these bills wrap up their free speech inhibitions under the guise of public service. Keith Kempenich, the state senator who sponsored the North Dakota bill, told the Washington Post that the legislation was inspired by an anecdote from his 72-year-old mother-in-law who found herself surrounded by anti-pipeline protesters on Highway 1806. "[Drivers] who were legally doing their business or just going home, and all of a sudden they're in a situation they don't want to be in," he said.

In Minnesota, State Representative Nick Zerwas defended his sponsored bill by saying protesters have left "taxpayers holding the bag" and that his legislation would put them on notice. "Now the meter is running," he said at a Minnesota House committee meeting late last month.

Rowland believes that none of the prospective anti-protest bills will hold up in court if they ever become law. The North Dakota bill has already stalled (though she says that doesn't mean it's dead), and she believes the Minnesota bill would be "dead on arrival" if passed. The language in it allows the government to sue anyone involved in a protest for community damage, which directly interferes with our due process.

"If you set fire to a municipal trash can, you can be charged for setting fire to that municipal trash can, but if you show up to a protest and have every intention to obey the law, and one protester goes rogue and sets a trash fire down the street, the Constitution does not permit the state to charge you for that person's crime," says Rowland. "So this bill, both in its intent and its effect, is unconstitutional."

Minnesota state representative John Lesch believes the intended legal effect of the bill is completely arbitrary because the Minnesota justice system is already equipped to punish protesters who've destroyed property through conditional probation. "The proposal was to hire government lawyers to sue them again for the same money. I don't know what the point of that is other than to throw red meat to people who are hyperventilating over Black Lives Matter," he says. "It has a political purpose, but it doesn't have a legal purpose."

Rena Moran, the Democratic deputy minority leader in the Minnesota House, puts it more bluntly. "This bill is about shutting down voices," she says. Specifically, "the voices of black people."

All of these bills are sponsored by Republicans, which might lead some to assume that the anti-protest movement is the exclusive domain of the right.Not so fast, says Rowland, who cites past instances of states introducing unconstitutional legislation protecting funerals from the Westboro Baptist Church, or keeping abortion clinics free of demonstrations as examples of Democrat-dominated legislatures targeting right-wing social movements. "I understand why, in this moment, this fight against First Amendment rights feels deeply partisan," she says. "But the one thing I can say as a First Amendment advocate is that the First Amendment has no permanent friends or enemies."

"We saw [Obama] do some things he shouldn't have done, and people were afraid to push back," says Sue Urdy, executive director of the Bill of Rights Defense Committee, referring to the passage of the so-called Trespass Bill, which some critics feared was designed to criminalize free speech. (In 2012, at the height of the Occupy protests, Obama signed the bill that expanded punishments for people who trespassed—knowingly or unknowingly—into Secret Service–protected sectors.) "Through the decades, there's a history of bills introduced that attack the social movement that is gaining prominence. I think these bills feel new because they're targeting street protests, but it's a constant thing that policy makers are trying to clamp down on activists' ability to organize."

As the Trespass Bill shows, both political parties will sometimes crack down on free speech when it suits them—but that just makes pushes back against them more important. The harshest rebuke of the motion in Minnesota came from Representative Ilhan Omar, who made history this past election by becoming the first Somali refugee elected to that state's house of representatives. "I come from and was raised in a country that was under dictatorship," she said in opposition to Zerwas' proposed legislation. "To me, the bill and the limitations that it's going to create, it's almost like you want us to live under a dictatorship."

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