Deep Dive

Anti-Protest Laws in the United States

America was born in the protests of 1765 to 1776. Large crowds assembled around liberty trees and liberty poles, hanging British officials in effigy, and thousands of people paraded through the streets of colonial towns voicing loud dissent against British taxes and other measures they considered oppressive. Today’s lawmakers seem much more squeamish about the right to assembly, which is now enshrined in the First Amendment. In response to a rise in public demonstrations, government officials at the state and federal level have introduced a variety of bills that target protest activity. Because of the sheer number of these bills–136 as of November 2020–we do not go into all of them. Instead, use this Deep Dive to read about some of the larger trends, expert analysis, and major legal challenges related to efforts to restrict the right to assemble.

For a comprehensive database on nationwide protest laws, please refer to the International Center for Nonprofit Law’s database which you can find here.

News & Updates

February 16, 2021: Arizona Lawmakers Move Forward on Anti-Protest Bill

Arizona lawmakers are considering a bill, HB 2309, that would heighten the penalties for a number of charges associated with protests, and create a new charge for behavior deemed “violent or disorderly assembly.”

Under the bill, “violent or disorderly assembly” is defined as someone who acts “with seven or more other persons…with the intent to engage in conduct constituting a riot or an unlawful assembly, causes damage to property or injury to another person.”

Arizona already has laws for disruptive behavior such as aiming a laser pointer at an officer, obstructing a highway, using fireworks, abusing venerated objects, and committing vandalism. Currently, all of these are considered misdemeanors. Under the proposed law, these charges would now be considered a class six felony, punishable with up to two years in prison, if the individual committed them in the context of a “violent or disorderly assembly.” The heightened penalty would not apply if the individual were charged in a different context.

Under the bill’s current language, protesters would also have to be kept in official custody for 12 hours after the initial arrest.

The American Civil Liberties Union of Arizona has criticized the law as overly broad, and warned that its language would endanger nonviolent forms of civil disobedience.

“If passed, people making their voices heard with tactics from the Civil Rights era—like sit-ins, boycotts, and the March to Selma—could be sent to prison,” the ACLU stated on their site. The civil rights group is encouraging Arizona residents to email their representatives and urge them to vote against the bill.

Though a similar bill targeting protesters in Arizona died last week, HB 2309 has double the number of sponsors as the previous legislation. On February 15th, the bill passed through the Military Affairs and Public Safety Committee and will now move on for a vote in the Republican-controlled legislature.

The Arizona law is part of a larger wave of bills targeting protest activity, a pattern that has concerned First Amendment and civil rights groups. In the first month of 2021, the United States saw 18 new bills introduced in 12  state legislatures that either expanded the definition of rioting, heightened penalties for existing offenses, or created new crimes associated with assembly.

January 29, 2021: At Least 18 New Anti-Protest Laws Were Introduced in First Month of 2021

Twelve state legislatures have introduced 18 new bills targeting protest this year, including bills in Arizona, Florida, Indiana, Kentucky, Maryland, Minnesota, Mississippi, Nebraska, New Hampshire, North Dakota, Oklahoma, and Rhode Island.

The bills vary in nature. Some propose expanding the definition of rioting or incitement to riot (SB484/HB1 in Florida, HB1205 in Indiana, and HB2215 in Oklahoma), while others propose raising penalties for violating curfews (SB in 198 Indiana), blocking traffic (HB164 in Kentucky, HB 645 in Maryland, HF 303 in Minnesota, SB 2374 in Mississippi), and vandalism (HB 2096 Oklahoma And at least one state, (SB198 in Indiana), creates new penalties for funding protests.

New Hampshire and Oklahoma have proposed bills that would strengthen their states’ “stand your ground” laws.. The New Hampshire bill would expand the state’s self-defense statute to justify using deadly force against a “rioter” if the person believes he or she is “likely” to use “unlawful force.” The Oklahoma bill would give a driver immunity if they unintentionally injure or kill someone while “fleeing from a riot.” 

So far, none of the bills have been enacted.

Elly Page, a senior legal adviser at the International Center for Not-for-Profit Law, told The Intercept that while she expected an uptick at the beginning of the state’s biennial legislative session, the number of bills introduced this year was far higher than in previous years. 

Page noted that since January 1st, 11 state legislatures have introduced 17 bills,* including those filled before the attack on the Capitol on January 6th.  “Compare that to 0 during the same period in 2020, 9 in 2019, 5 in 2018, and 13 in 2017,” she said, adding that the 2017 spike was mostly due to North Dakota’s response to the Standing Rock protests.* 

She suspects that lawmakers are using the insurrection at the Capitol to push the bills forward.

“Lawmakers may be trying to take advantage of the moment and the visuals of the violent and destructive Capitol scene, to make their case — to the public and to fellow lawmakers — that these draconian new measures are necessary,” Page said. 

*The Intercept article was published on January 21, 2021, a day before Maryland introduced a new anti-protest bill.

The Intercept

January 11, 2021: Ohio Governor Signs Senate Bill 33 Into Law

Ohio Governor Mike DeWine signed into law a bill that raises the penalties for trespassing on oil and gas sites from up to a month in prison and $250 in fines to up to six months in prison and $1,000 in fines. The bill also raises the penalties for “improperly tamper[ing] with oil and gas infrastructure, a crime now punishable with up to five years in prison.

Environmental groups in Ohio have been lobbying against the bill since it was introduced in 2019, but the pandemic made it difficult to keep lawmakers’ attention.

This is not the first bill we have seen in Ohio targeting protest. In November, Ohio lawmakers introduced a bill that would give citizens permission to use deadly force to escape a riot. According to the U.S. Protest Law Tracker, the bill was defeated.

November 9, 2020: Ohio Lawmakers Propose Law Justifying the Use of Deadly Force to Escape a “Riot”

A new Ohio bill (HB 784) suggests amending the state’s self-defense statute to protect a person who uses force, including deadly force, to escape a “riot.” Ohio law defines “riot” to include engaging in “disorderly conduct” (including “recklessly caus[ing] inconvenience [or] annoyance”) with four or more individuals “to hinder, impede, or obstruct a function of government. Ohio’s definition is broad enough that it could include peaceful protests. 

Under the bill, a person who “reasonably believes” they are under threat of “imminent bodily harm” are justified in using “reasonable force.” The law could encourage people to respond violently to protests.

The lawmakers also proposed increasing penalties for blocking traffic and enabling police who suffered injuries during a protest to sue organizations who provided protesters with “material support.” Currently, an unpermitted protester who is charged with “hindering or preventing movement” of traffic faces a maximum fine of $150 with no jail time (a minor misdemeanor). Under the new bill, the same protester could face a maximum fine of $10,000 with up to three years in prison (a third degree felony).  

September 29, 2020: Michigan Lawmaker Proposes Stripping Government Aid From Protesters Charged with “Looting” or “Vandalism” 

A Michigan lawmaker is proposing an amendment to the state’s welfare law that would prevent individuals “charged with looting, vandalism, or a violent crime in relation to or stemming from civil unrest” from receiving public assistance benefits for one year.

The law defines “violent crime” broadly to include “intimidation, threat, or coercion,” and “civil unrest” as an act of “violence or disorder detrimental to the public law and order.” Based on this definition, a nonviolent protester arrested for threatening behavior could lose access to cash, food, and medical assistance. Additionally, if aprotester has a child with him or her and is charged with looting, vandalism, or violent crime, the parent will be  reported to child protective services.

August 4, 2020: Republican Senators Propose Withholding Federal Funds from States That Fail to “Address Violent Riots and Looting” 

Two U.S. Senate bills (S4266 and S4424) suggest empowering the U.S. Attorney General to withhold federal funds from local prosecutors who fail to prosecute crimes associated with riots and protests. 

Introduced on July 22, 2020 by Sen. Ted Cruz (R-TX), S2466 would allow the Attorney General to withhold up to 25% of funds for failing to take “reasonable steps” to protect damage and injury. 

The second bill, introduced on August 4, 2020 by Sen. Kelly Loeffler (R-GA) and Sen. Tom Cotton (R-AR), would give the Attorney General the authority to keep COVID-19 related emergency funds from states who “abuse the use of prosecutorial discretion by failing to prosecute crimes stemming from riots or other violent or destructive protest activities.” 

Many local statutes define riot broadly. If either of these bills pass, local governments may feel pressured to take on a more aggressive interpretation of rioting and prosecute peaceful protesters.

April 1, 2020: Three States Pass Laws That Enhance Punishments for Fossil Fuel Protests

This month, legislators in Kentucky, South Dakota, West Virginia have worked to pass new laws that target individuals protesting fossil fuel companies.

In West Virginia, where Governor Jim Justice (R) signed the “Critical Infrastructure Protection Act” on March 25th, oil and gas company facilities are now considered “critical infrastructure,” and are assigned the same protective status as dams and military facilities. The bill enhances jail time and fines for trespassing and intentionally damaging petroleum refineries and natural gas compressors.

Also see: Federal Judge Says Iowa Can’t Enforce Its Newest Ag-Gag Law

Kentucky Governor Andy Beshear signed a similar bill on March 16th which redefined natural gas and petroleum pipelines as “key infrastructural assets,” and made it a first-degree criminal mischief offense to deface or tamper with fossil fuel infrastructure.

On March 18th, South Dakota Governor Kirsti Noem signed into law a bill that made the “interruption or impairment” in gas service a felony. Gov. Noem also passed a second bill that increased punishment for persons “instigating, inciting, or directing” riots.

Only the West Virginia law includes an exception for picketers who organize protests on the company’s property over issues involving “wages, salaries, hours, working conditions, or benefits”.

First reported by HuffPost, reporter Alexander Kauffman was contacted by Connor Gibson, a researcher at Greenpeace USA, who believed legislators had taken advantage of the fact that national attention was focused on the coronavirus, and not on pollution.

“While we are all paying attention to COVID-19 and the congressional stimulus packages, state legislatures are quietly passing fossil-fuel-backed anti-protest laws,” Gibson told HuffPost. “These laws do nothing new to protect communities. Instead, they seek to crack down on the sort of nonviolent civil disobedience that has shaped much of our nation’s greatest political and social victories.”

The Hill

August 29, 2017: Six States Pass Laws Limiting Freedom of Assembly

Citing a new report by State Innovation Exchange describing state bills proposed in 2017, USA TODAY counts 20 states that considered new “anti-protestor” laws. Five of those states—Arkansas, Georgia, North Dakota, Oklahoma and South Dakota—enacted legislation that was criticized as having a chilling effect on demonstrations. Virginia passed a bill to criminalize anti-police protests, but Governor Terry McAuliffe vetoed it.

August 16, 2017: After Charlottesville, New Look at Bills to Protect Drivers Who Hit Protestors

Bills were introduced in five states this year to grant civil immunity to drivers who unintentionally hit protestors when demonstrators block the streets. However, legislators in Florida, North Carolina, Rhode Island, Tennessee and Texas denied that their proposals would in any way condone the driver in Charlottesville who killed a pedestrian with his car. Instead, policymakers continued to defend their bills as a deterrent to protestors taking to the streets without a permit.

March 30, 2017: U.N. Officials Warn Against “Alarming” Anti-Protest Bills

A statement by U.N. human rights experts said that anti-protesting bills in 19 states threaten “to jeopardize one of the United States’ constitutional pillars: free speech.” They urged states not to respond to some incidents of violence by stripping “other protestors of their right to freedom of peaceful assembly.” The same experts criticized Russia for its response to peaceful street demonstrations.

February 28, 2017: “Revival” of Protests Triggered Anti-Protest Legislation

According to The Atlantic, the introduction of anti-protest legislation in multiple state legislatures “comes amid a revival of disruptive protests,” ranging from Black Lives Matter demonstrations to the Women’s March on Washington.

February 17, 2017: Bill Would Make Oil & Gas Pipeline Tampering A Felony

Colorado State Senator Jerry Sonnenberg introduced a bill that would make it a felony to change the pressure of valves on oil and gas sites. Sonnenberg claims the bill would only affect protesters who enter drilling sites and change the pressure on pipelines. Though the bill passed through the Senate Agricultural Committee, it is unlikely to get through the Democrat-majority House.

Analysis & Opinion

January 14, 2021: PEN America CEO Suzanne Nossel Says Charging Trump With Incitement Will Give Lawmakers License To Punish Progressive Protests

In an op-ed for The New York Times, PEN America CEO Suzanne Nossel says that it is unlikely that a court will find that President Trump’s speech met the legal definition of incitement.

“[T]he strict legal test for incitement demands that the relationship between the targeted speech and the elicited action to be proximate, meaning that Trump’s long track record of prior incendiary statements cannot be grounds for a finding of incitement on Jan. 6.”

While Trump should not go “unpunished,” Nossel insists that attempts to lower the incitement standard to hold him accountable for the attack on the Capitol will backfire.

“Last year, the South Dakota Legislature, targeting anti-pipeline protests, passed a new law creating a crime of ‘incitement to riot’ that defined riots as acts of violence that can include as few as three people. If the stringent legal test for incitement were watered down in order to punish Mr. Trump, the result could be heightened legal exposure for countless others who deserve protection for their speech and assembly rights.”

 

June 1, 2020: “First Amendment Rights-If You Agree With the President: Trump’s animosity toward protesters he disagrees with is becoming a policy reality on the state level.” By Nora Benavidez

Director of U.S. Free Expression Programs at PEN America, Nora Benavidez argues in an essay for The Atlantic that President Donald Trump is encouraging local leaders to introduce bills targeting protests they don’t like. While many of the bills appear neutral, Benavidez writes that their true aim is to intimidate prospective protesters. Comparing the government’s tepid response to conservative anti-lockdown protesters, to the aggressive police tactics used against anti-racist protests, results in the First Amendment being applied unevenly, she contends.

“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.”

May 18, 2018: Lata Nott: These Two States Are Pushing Laws To Criminalize Some Protests

Newseum Institute’s First Amendment expert, Lata Nott, calls out legislators in Louisiana and Minnesota for proposing bills that “would criminalize the activities of groups protesting the construction of oil pipelines” and thereby negatively affect the First Amendment freedom of assembly. This is the latest in efforts by states to “place restrictions on when and how we exercise [freedom of assembly]…these proposed laws seem specifically designed to intimidate and dissuade people from protesting at all.”

March 2, 2017: Trends Emerge in Bills to Criminalize Protest

Traci Yoder of the National Lawyers Guild takes a deep dive into the anti-protest legislation, grouping similar proposals to demonstrate specific trends such as “bills removing liability from drivers who ‘accidentally’ hit and kill protesters.” She finds the bills create “an atmosphere of confusion and fear. … likely to have a chilling effect on dissent.”

February 24, 2017: Anti-protesting Bills in 18 States a Reminder of the Civil Rights Era

The Washington Post reports reasons put forth by state legislators both for and against the bills proposed since President Trump’s election. The article also provides some historical context, noting “legislative backlash” to civil rights protests such as the Montgomery Bus Boycott compared to current lawmakers reacting to demonstrations organized via social media. At the end of the article, there is a brief state-by-state description of bills that have been introduced.

February 17, 2017: ACLU Decries Rise of Anti-Protest Legislation

In a detailed blog post, staff members with the ACLU Speech, Privacy, and Technology Project criticize the rise of anti-protest legislation across the nation and say many of the state bills are unconstitutional. In fact, they specify “protesting in the streets is a fundamental constitutional right.”

Map: ACLU Fighting Anti-Protest Bills As of 6/23/17