[ ‘Who defines what peaceful is?’ A deep divide over
protests.] [[link removed]]

NEW ANTI-PROTEST LAWS CAST A LONG SHADOW ON FIRST AMENDMENT RIGHTS  
[[link removed]]


 

Carrie Levine
December 20, 2021
Center for Public Integrity
[[link removed]]


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[[link removed]]
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_ ‘Who defines what peaceful is?’ A deep divide over protests. _

Tiffany Crutcher speaks during the Juneteenth celebration in the
Greenwood District on June 19, 2020 in Tulsa, Oklahoma. Crutcher is
the twin sister of Terence Crutcher who was killed by a Tulsa police
officer in 2016. She is an advocate for police reform, cnn.com

 

Tiffany Crutcher was worried. 

Oklahoma lawmakers had passed a new measure
[[link removed]] stiffening
penalties for protesters who block roadways and granting immunity to
drivers who unintentionally hit them. The state NAACP, saying the law
was passed in response to racial justice demonstrations and could
chill the exercising of First Amendment rights
[[link removed]],
filed a federal lawsuit
[[link removed]] challenging
portions of it. But the new law was only weeks from taking effect.

Crutcher, an advocate for police reform and racial justice, was
moderating a virtual town hall
[[link removed]] about
it, featuring panelists who brought the lawsuit. At the end, she asked
a question that went directly to the stakes. 

Under the new law, “is it safe for the citizens of Oklahoma to go
and do a protest?”

The three men on the panel were silent. 

Five seconds ticked by. 

Crutcher asked again. 

“Would you all advise against it, the way the law is written, or
should we continue, knowing that it’s our constitutional right to
speak out, to assemble?” And, her voice anxious, she continued to
press. 

“Are you all confident that we’ll be able to, kind of, walk free
from those penalties that may be imposed?” 

It fell to Anthony Ashton, the NAACP’s director of affirmative
litigation, to respond: “If we thought there was no chance of
prosecution, if we thought there was no chance nothing bad would
happen, we wouldn’t be filing this lawsuit.” 

That palpable sense that something bad will happen isn’t confined to
Oklahoma. Far from it. The law worrying Crutcher is just one
of dozens of statutes
[[link removed]] restricting
the right to protest that have been enacted around the country since
2017, and many more are pending. 

This year saw the highest number
[[link removed]] yet
of such bills, according to the International Center for
Not-for-Profit Law, which tracks them
[[link removed]].
ICNL says such bills are often introduced in response to
[[link removed]] prominent
protest movements, such as protests against pipelines or the racial
justice protests around the country since the murder of George Floyd.

Nearly all the protests since Floyd’s death in states that have
passed new laws have been nonviolent, according to research by the
Armed Conflict Location and Event Data Project, a nonprofit that
tracks political violence. But that hasn’t stemmed the growing legal
backlash. 

A Center for Public Integrity review of hundreds of pages of documents
and court filings, as well as interviews with advocates, lawyers and
First Amendment experts, found the new laws are casting a long shadow.
Even as demonstrations for environmental justice and against
discrimination, racial injustice and police brutality help propel
those issues to the fore of public debate, experts say the push for
new statutes carrying harsh sanctions could taint the public’s
perception of protests as an important tool for change. 

“Every such bill is an argument that we should see protest through
the lens of criminality or potential criminality, as opposed to
viewing protest through the lens of our First Amendment,”
said James Tager [[link removed]], research
director at PEN America, a nonprofit that has released two reports on
the surge in anti-protest laws. 

The threat of severe penalties and fears of exposing supporters to
serious consequences weigh on advocates such as Crutcher. In some
cases advocates say the laws are prompting them to lean more heavily
on alternatives, such as door-knocking or social media campaigns, and
divert resources into educating people about the new laws and training
them to comply. 

But, Crutcher said, “There is no progress without protest.”

WHO DEFINES WHAT PEACEFUL IS? 

Proponents of the new statutes, mostly Republicans, say they are meant
to maintain public safety and order and deter riots. Law-abiding
peaceful demonstrators, they say, have nothing to fear. 

But experts and advocates question the need for new laws. 

“These laws are entirely unnecessary because unlawful activity is
already unlawful,” said Nick Robinson
[[link removed]], a senior legal
adviser at ICNL. “They’re getting drafted in such an overbroad and
vague way, they can capture people who are just part of a crowd.” 

For example, he said, a Florida law passed earlier this year defines
rioting to include participating in a “violent public disturbance”
resulting in “imminent danger of injury to another person or damage
to property.” The language is confusing, he said, because it
suggests it takes only imminent danger, rather than actual harm, to
trigger the statute.Robinson said the new statutes give law
enforcement “such leeway to go after peaceful protesters,” a point
echoed by other experts. And criminal charges are stigmatizing and
take time to fight, even if they aren’t ultimately upheld. 

He pointed to the case of Julian Bear Runner, arrested in 2017 and
charged with, among other things, engaging in a riot after he locked
arms with others protesting the Dakota Access pipeline. Bear Runner
appealed, arguing that his conduct did not meet the law’s definition
of “tumultuous and violent.” The state said the charge was
appropriate. The North Dakota Supreme Court reversed the conviction
[[link removed]] on the riot
charge — in January 2019, nearly two years after the arrest.

Some of the laws are so new, few have yet been charged. But experts
are concerned about subjective enforcement. 

“Here’s my strong expectation: These laws will be selectively
employed and they will be way disproportionately used in particular
against Black activists,” said Omar Wasow
[[link removed]], an assistant
professor of politics at Pomona College. He has studied protest
movements and their political effects and stresses they are a form of
free speech.

Wasow and others said a period of increased protests, followed by a
push for restrictive punitive legislation limiting such
demonstrations, echoes historical patterns. He compared the new laws
both to the backlash against civil rights protests in the 1960s and
the so-called “three strikes” laws of the 1990s that set severe
mandatory penalties for relatively minor offenses. Wasow’s
prediction of selective enforcement echoes trends Armed Conflict
Location and Event Data Project researchers found in its data — that
authorities were three times more likely
[[link removed]] to
intervene in pro-Black Lives Matter demonstrations than others and
more likely to use force when intervening, trends that held regardless
of whether demonstrations were nonviolent.

Researchers
[[link removed]] from
Wilfrid Laurier University in Canada used footage from the Women’s
March in 2017 to demonstrate the effects of political partisanship.
The new study
[[link removed]] found
supporters of former President Donald Trump, after viewing the video,
reported seeing a greater number of false events, like destruction of
property, that didn’t actually occur, ultimately fostering greater
opposition to the cause.

Take the case of Kyle Rittenhouse, who shot three people
[[link removed]] during
unrest in Kenosha, Wisconsin, last year. Rittenhouse, who argued he
acted in self-defense, was acquitted
[[link removed]].
But his case prompted a searing public debate over vigilantism and gun
violence, as well as spotlighting a divide
[[link removed]] over
responsibility for the violence. 

Those in power can use systems and institutions, such as the law, to
control the actions of those fighting for equity, said Jamie Riley
[[link removed]], director of race and
justice for the NAACP. 

“Who defines what peaceful is?” he asked. “Peacefulness is not
objective. It’s very subjective based on how you’re navigating,
experiencing suppressions.”

Some of the new laws and proposed statutes have penalties tailored to
strip rights or public benefits, which could have long-term
consequences for protesters’ lives. A Tennessee law responded to
demonstrators camping at the state Capitol by making that a felony
[[link removed]];
a conviction means losing the right to vote. That law also requires
people arrested on those or certain other related charges to be held
at least 12 hours without bond
[[link removed]].
A Michigan bill last year died in committee
[[link removed](S(mqcnhpotune2ldwasgpxcypy))/mileg.aspx?page=GetObject&objectname=2020-HB-6269] but
would have revoked public benefits
[[link removed]] from
anyone charged with looting or vandalism in connection with civil
unrest, even without a conviction. 

Such sanctions are “almost like penalizing people for participating
too directly in the democratic process,” PEN America’s Tager
said. A senior policy analyst with a conservative group, Americans
for Prosperity, also has criticized the new laws. The laws “could
potentially empower authorities to shut down peaceful protests and
arrest nonviolent participants,” warned David Voorman in
a _Newsweek_ opinion piece
[[link removed]] earlier
this year. “Even if these individuals are quickly released and no
criminal or civil charges are pursued, the chilling effect on speech
will be real.”

Dakota Access protestors stand their ground on the bridge between
Oceti Sakowin Camp and County Road 134 in North Dakota on Sunday, Nov.
20, 2016 while being sprayed with water cannons and tear gas –
paintballs, rubber bullets, and sound cannons were also used. The
protestors build a fire to stay warm in 26 degree weather while also
being soaked by police. (Cassi Alexandra for The Washington Post via
Getty Images)

LAWS DON’T ARISE OUT OF NOWHERE

ICNL has tracked
[[link removed]] what
it describes as “a wave of anti-protest bills” since 2017, after
the demonstrations over the Dakota Access pipeline in North Dakota
drew international attention to the Standing Rock reservation. Law
enforcement clashed violently with protesters, hundreds of whom were
arrested
[[link removed]] and
[[link removed]] charged
[[link removed]] in 2016
and 2017
[[link removed]],
including the then-chairman of the Standing Rock Sioux Tribe
[[link removed]].  

In the wake of Standing Rock, big energy companies
[[link removed]] and trade
associations
[[link removed]] pushed
for legislation
[[link removed]] carrying
stiff penalties for anyone trespassing or tampering with certain types
of “critical infrastructure,” such as pipelines, according
to research
[[link removed]] by
Greenpeace and reporting by The Intercept. The American Legislative
Exchange Council
[[link removed]],
a conservative pro-business group known as ALEC, circulated model
legislation
[[link removed]] and 17
states
[[link removed]] so
far have enacted such “critical infrastructure” bills, according
to ICNL. 

Minnesota has not enacted a new law recently, according to ICNL,
though the state Legislature has considered several
[[link removed]]. Indigenous
and environmental groups
[[link removed]] have
protested construction of the Line 3 oil pipeline there and nearly 900
people have been arrested, according to Minnesota Public Radio
[[link removed]],
straining the court system in rural parts of the state and forcing
waits for public defenders. Lawyers say
[[link removed]] some
are facing unfairly severe charges. 

Tara Houska, a tribal lawyer and founder of Giniw Collective
[[link removed]] who has been arrested
protesting the Line 3 pipeline, said she has worked to oppose
anti-protest bills in Minnesota. Such legislation, she said, is
“aimed at suppressing any form of public demonstration.” 

“The attempts that are happening in state legislatures to water down
the First Amendment, to criminalize protest, to criminalize clearly
protected free speech — it’s something that should really concern
people that are supportive of democracy,” she said. 

After Floyd’s death, as demonstrations over racial justice and
police violence against Black people took place around the country,
legislators proposed more bills that would stiffen penalties on
protesters. A hundred bills were introduced in 33 states in less than
10 months, PEN America found
[[link removed]]. 

“These laws didn’t just arise out of nowhere. They arose out of
the context of protests against police brutality, particularly against
Black residents,” said Joseph Mead
[[link removed]], senior counsel at
Georgetown Law’s Institute for Constitutional Advocacy and
Protection, one of the lawyers representing the Oklahoma NAACP.

And the new and proposed statutes are frequently getting prominent
support from law enforcement. Police unions and groups advocated for
the bills in at least 14 states this year, according to findings
[[link removed]] by
Connor Gibson, an independent researcher who has worked for
Greenpeace. Gibson also found that in at least 19 states, bill
sponsors included current or former law enforcement officers. 

[BEMIDJI, MN - SEPTEMBER 04: Tara Houska of the Couchiching First
Nation speaks at a press conference to address the Line 3 Pipeline
project at Nymore Beach on September 4, 2021 in Bemidji, Minnesota.
(Photo by Stephen Maturen/Getty Images)]

Tara Houska speaks at a press conference to address the Line 3
Pipeline project at Nymore Beach on Sept. 4, 2021 in Bemidji,
Minnesota. (Photo by Stephen Maturen/Getty Images)

In Florida, Republican Gov. Ron DeSantis was surrounded by law
enforcement at a September 2020 press conference where he unveiled a
draft bill he described
[[link removed]] as
“probably the boldest and most comprehensive piece of legislation to
address these issues anywhere in the country.” DeSantis made his
announcement at the Polk County sheriff’s office, and Sheriff Grady
Judd was among the speakers.

DeSantis proposed
[[link removed]] stiffening
penalties for “violent or disorderly assemblies” and taking over
roadways. He wanted to terminate the state benefits of anyone
convicted and render them ineligible for employment by state or local
government. His proposal also created new liability for “anyone who
organizes or funds a violent or disorderly assembly.” In addition,
he wanted to prohibit state grants or aid for local governments who
cut law enforcement funding.

Racial justice protests in Florida had almost entirely been
nonviolent, something DeSantis acknowledged. He said his bill would
deter future violence. 

Lawmakers filed a draft bill on Jan. 6, citing
[[link removed]] the attack
on the U.S. Capitol. PEN America’s Tager said the Florida
legislation has been an influential model for other states. Records
[[link removed]] obtained
[[link removed]] from
the Florida Legislature by watchdog group American Oversight and
shared with Public Integrity show some of the bill’s
backers, including Judd
[[link removed]],
contacted lawmakers and suggested changes that would have extended the
bill’s reach even further. 

Jeff Kottkamp, a Republican and former lieutenant governor,
had previously called for
[[link removed]] legislation
to protect monuments, something included in the bill.
Kottkamp contacted the bill’s sponsors
[[link removed]] and, records
show
[[link removed]], pushed
for
[[link removed]] a citizen
standing provision
[[link removed]] that
would let any Florida resident sue when a monument or memorial is
damaged. Kottkamp also suggested appointment of a “domestic
terrorism task force” that could scrutinize tactics by “ANTIFA and
other extreme leftists groups” regarding monuments. “One thing
they do is to arrive in a large group to protest a monument — and
threaten to keep coming back every week — forcing a local government
to spend money they don’t have on additional security,” he wrote.
Those proposals are not in the law. Kottkamp did not respond to
requests for comment.

Groups such as the Florida ACLU and Florida Conference of Catholic
Bishops
[[link removed]],
meanwhile, vehemently objected. The Florida ACLU took particular aim
at the bill’s definition of a riot and how it could be applied to
people who had done nothing wrong. Under the bill, the group said
[[link removed]],
“mere participation in an otherwise peaceful protest where there are
three other people engaging in disorderly and violent conduct would
subject all those present at the protest to a third-degree felony,
punishable by up to five years in prison, a $5,000 fine, felony
disenfranchisement, and all the lifelong collateral consequences of a
felony conviction.” 

Sheriff Grady Judd (Polk County Sheriff’s Office website)

In an interview, Judd said he asked lawmakers to make it illegal to
bring specific items to a protest, including bricks, frozen water
bottles and bulletproof vests, because such things signal plans for
violence. He acknowledged that using such items as weapons would
already be illegal but said Florida has no law “that prohibits you
from showing up with frozen water bottles, bats and all of that other
stuff, and that, I have a real problem with.” Lawmakers didn’t
incorporate his proposal into the bill; he says he wishes they had. 

Judd repeatedly said he is in favor of peaceful protests and wants to
work with organizers trying to hold them. The goal of the legislation,
and his proposals, he said, was preventing future problems. He pointed
to images of destruction and violence
[[link removed]] in
places such as Wisconsin.

He’s been a prominent supporter of the bill. When DeSantis signed
[[link removed]] the
final legislation in April — including enhanced penalties for crimes
committed during a riot and some new offenses
[[link removed]],
but not all of his original proposals — Judd, as he had in
September, showed pictures of what he described
[[link removed]] as
peaceful protests versus riots. 

“Pay attention,” he said at the signing event. “We’ve got a
new law and we’re going to use it if you make us.”

Asked about the concern that it gives law enforcement too much
discretion, Judd said the answer is having the trust of the community.
He said he’d personally explained it to worried Polk County
residents. 

As for whether the law appropriately balances the constitutional right
to protest with the need to maintain public safety? That, he said, is
up to the courts. “Nothing else matters if you and your children
aren’t safe,” the DeSantis press release
[[link removed]] about
the new law quoted Judd as saying. “This law represents Florida’s
commitment to public order and creating a safe place for people to
express their constitutional right to free speech.”

COURTROOMS AND CONSEQUENCES

Not everyone agreed with Judd’s take.

Francesca Menes [[link removed]],
co-founder and board chair of The Black Collective, a Miami-based
nonprofit that promotes political participation and economic
empowerment of Black communities, said the timing of DeSantis’
September announcement, coming after a summer of racial justice
protests, clearly showed the impetus for the legislation.

“You wanted to silence us,” she said. “You wanted to intimidate
us.” After the bill passed, Menes said, she and other advocates
wanted to organize a protest over it. “And we were like, ‘Oh crap.
We can’t.’” 

The law, Menes said, was too vague and the consequences too uncertain.

“Police have the discretion to decide who is wrong, and again,
history shows who they tend to choose when they are deciding who is
wrong,” she said. “So for us, you’re asking us to put faith in a
system that was designed to incarcerate us and criminalize us. And we
don’t have faith in that.”

Instead of protesting, The Black Collective created a leaflet about
the passage of the bill and organized a door-knocking campaign with
partner organizations to educate people about the new law. And it
joined with other Black-led organizations to challenge key provisions
[[link removed]] in
federal court, arguing, among other things, that they are overbroad
and violate the equal protection clause of the 14th Amendment by
targeting Black organizers and organizations. 

“The biggest reason we haven’t seen a huge slew of arrests is
because these organizations really care about their members and are
taking great pains to make sure they aren’t in harm’s way,”
said Alana Greer [[link removed]], director
and co-founder of the Community Justice Project and one of the lawyers
representing those suing the state. 

In a 90-page ruling
[[link removed]] that
delved into the differing ways the two sides read the law, U.S.
District Judge Mark Walker, a Barack Obama appointee, found the
plaintiffs submitted enough evidence to show it was chilling their
speech. 

He wrote that some “have chosen to modify their activities to
mitigate any threat of arrest at events, and … at least one
Plaintiff has ceased protest activities altogether.” 

Walker issued a preliminary injunction stopping the governor and three
sheriffs from enforcing the new definition of riot, in part because
the law “empowers law enforcement officers to exercise their
authority in arbitrary and discriminatory ways.” The state is
appealing. 

Even with the injunction, Menes said The Black Collective is
proceeding cautiously and will do so as long as the law is on the
books. “We know they cannot enforce it, but who is to say they
won’t enforce it,” she said.

In Oklahoma, Crutcher in mid-October was organizing efforts to draw
attention to the case of a death row prisoner, Julius Jones. But she
was waiting to see if a federal judge would stop the new law from
going into effect on Nov. 1. 

“I think about these precious people,” she said, “my community
of angels and supporters, being arrested and being pipelined into a
criminal legal system for exercising their First Amendment right. I
think about them not being able to go home to their kids. I think of
them losing their jobs. I mean, those are legitimate things that I
think of when I make the call to go out and protest an injustice.” 

Still, she vowed she would continue drawing attention to Jones’ case
leading up to his scheduled mid-November execution date. (Oklahoma
Gov. Kevin Stitt, a Republican, commuted
[[link removed]] Jones’
death sentence to life imprisonment hours before the scheduled
execution.) “We have no choice,” she said. “We will be
organizing.”

Crutcher later said the increased penalties looming if the new law
went into effect forced “hard conversations,” including “are you
arrestable?” On Oct. 27, days before the new law went into effect, a
federal judge issued a preliminary injunction
[[link removed]] covering
the two provisions challenged by the NAACP as vague and overbroad,
saying the lawsuit had a substantial likelihood of succeeding on the
merits. 

The news prompted “a sigh of relief,” Crutcher said.

The injunction
[[link removed]] covers
a provision that subjects organizers of protests to penalties if
they’re found to have conspired with someone to commit certain
crimes. The state said the provision applied only to violations of the
riot-related laws, but plaintiffs argued it was unconstitutionally
vague and it wasn’t clear what would trigger liability. The
injunction also covered the section setting new penalties for
obstructing a street. The judge found
[[link removed]] it
wasn’t clear the street obstruction provision applied only to
riot-related activities. The state is appealing. 

Legal challenges like the ones underway in Florida and Oklahoma
aren’t easy to bring, and such cases can take years to reach a final
resolution. 

“It’s extremely onerous to build a challenge like this and to make
sure it’s as strong as possible,” said Joseph Schottenfeld,
assistant general counsel for the NAACP, which is participating in the
challenges in Florida and Oklahoma.

‘A LITTLE NIBBLE’

In Alabama, a statewide bill didn’t pass during the most recent
legislative session. But a narrower bill, affecting just one
county, sailed through [[link removed]]. 

In September 2020, Camille Bennett was, once again, organizing a
protest for downtown Florence, Alabama, advocating for the county to
move a Confederate monument
[[link removed]] stationed
outside the Lauderdale County Courthouse. Protests — and
counterprotests — had been underway for weeks, at first near the
courthouse. Then, Bennett moved to the city’s small downtown, where
there were more people.

“We felt that the powers that be were really comfortable with us at
the courthouse. They felt safe,” she said. “The real pushback came
when we started going into the business district and the restaurant
district.” 

The police wanted the demonstrators to protest in designated zones
that would separate the protesters and counterprotesters in a
less-trafficked area. Bennett consulted her lawyers and protesters
assembled — silently, to comply with a city noise ordinance —
downtown outside of the prescribed zones. Police didn’t interfere.
The question of protest zones seemed to be resolved. 

It wasn’t. 

Earlier this year, after the regular protests had stopped and Bennett
was concentrating on a court case over the monument, she caught wind
of legislation in the offing. 

In February, her state senator filed a bill that would allow
municipalities in Lauderdale County to set new limits on where people
could protest and to charge new fees. Bennett said the bill was
clearly aimed at her group, Project Say Something. 

It passed easily. In September, Project Say Something’s lawyers,
including the ACLU of Alabama, sent a letter warning the city and
county to tread lightly.

“We are deeply concerned that municipal or county ordinances enacted
pursuant to Act 241 would quash freedom of speech and protest,” the
letter warned, adding that the new act “is specific to Lauderdale
County and, we surmise, directed at our clients.”

The letter also took aim at the noise ordinance, which it said was too
vague, and a parade ordinance, which it said infringed on
protesters. 

In response to a request for comment, Florence Mayor Andrew Betterton
said the city didn’t request the legislation and “had no knowledge
of it until it was introduced and adopted by the Legislature. The City
also has no intentions” of using the authority granted by the new
law. The county didn’t respond to a request for comment.

In November, Bennett and some of her lawyers and supporters went
before the City Council at a public meeting
[[link removed]], saying they hadn’t gotten a response
to the letter and reiterating their concerns. Bennett described the
new law as “the embodiment of the hostility and contempt Florence
protesters are met with when protesting.” One council member said
she would seek to address their concerns via a City Council
committee. 

Tish Gotell Faulks, legal director of the ACLU of Alabama,said the new
law could have a chilling effect. But she said she believes there’s
no way to successfully challenge it until the city or county moves
forward. In the meantime, she acknowledged there’s a debate about
whether the passage of the law, by itself, would keep people from
participating in demonstrations. 

“You look at the law on its face and it looks like the city and the
county have this wide discretion as to when, where and how a speaker
can protest,” she said. “And the average person doesn’t want to
run the risk of potentially getting arrested.” 

Faulks and others expect the state Legislature to again take up a
statewide anti-protest bill in the next session. Some, she said, could
argue that the Lauderdale County bill paved the way by demonstrating
“that the sky will not fall if we start nibbling at the edges of
First Amendment protections.” 

Faulks, needless to say, isn’t one of them. 

“A little nibble,” she said, “is the beginning of a gushing
flesh wound.”

_Indian Country Today [[link removed]]_, _which
co-published this story, is an independent, nonprofit news
organization that covers the Indigenous world with a daily digital
platform and weekday news broadcast with international viewership._

_Carrie Levine is a Senior Reporter with the Center for Public
Integrity.  She joined the Center's staff in 2014 and investigates
the influence of money in politics._

*
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