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.
Chief Judge Mark E. Walker of the U.S. District Court for the Northern District of Florida granted a preliminary injunction against Florida Gov. Ron DeSantis’ “anti-riot” bill in September 2021, stating that the law was “vague and overbroad” and violated the demonstrators’ First Amendment rights to freedom of speech and the right to peacefully assemble.
The law, House Bill 1, was enacted in response to Black Lives Matter demonstrations in the spring and summer of 2020 after the killing of George Floyd by Minneapolis police.
The bill’s definition of “riot” states any person is guilty of committing a third-degree felony if someone “willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in: (a) Injury to another person; (b) Damage to property; or (c) Imminent danger of injury to another person or damage to property.”
DeSantis appealed Judge Walker’s decision to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit stated in January 2023 that “whether Florida’s riot statute is unconstitutional turns on the proper interpretation of the new definition of ‘riot’ under Florida law—a question the Florida Supreme Court, the final arbiter of State law, has not yet addressed.”
The Eleventh Circuit left the preliminary injunction in place and certified the “question regarding the meaning of ‘riot’ in the new state law to the Florida Supreme Court,” before it can make a decision as to whether HB 1 is constitutional.
Since Florida Governor Ron DeSantis signed the “Combating Public Disorder” act into law in April 2021, civil liberties groups across the country have questioned its constitutionality. Now, two separate groups have sought to challenge the law in federal court.
One of the lawsuits is being led by the ACLU of Florida, together with the NAACP Legal Defense and Educational Fund Inc. (LDF), and the Community Justice Project (CJP). The coalition filed its suit on May 11 in United States District Court for the Northern District of Florida on behalf of six Black-led organizations who believe HB1 will have a chilling effect on protest.
The six organizations include Dream Defenders, The Black Collective, Chainless Change, Black Lives Matter Alliance of Broward, Florida State Conference of the NAACP Branches and Youth Units, and the Northside Coalition of Jacksonville.
On April 19, Florida Gov. Ron DeSantis signed into law H.B. 1, new legislation that includes a collection of amendments and additions to existing Florida statutes concerning criminal charges for violent protests. The legislation enhances penalties for people who commit crimes during a riot and gives the state the power to approve funding of local budgets, particularly in regards to funding law enforcement.
H.B. 1 amends the section of Florida Statutes concerning affrays and riots to read in part:
“A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in: (a) Injury to another person; (b) Damage to property; or (c) Imminent danger of injury to another person or damage to property. A person who commits a riot commits a felony of the third degree…”
Additionally, H.B. 1 establishes a new charge, “aggravated riot,” that is classified as a second-degree felony:
“A person commits aggravated rioting if, in the course of committing a riot, he or she:
(a) Participates with 25 or more other persons; (b) Causes great bodily harm to a person not participating in the riot; (c) Causes property damage in excess of $5,000; (d) Displays, uses, threatens to use, or attempts to use a deadly weapon; or (e) By force, or threat of force, endangers the safe movement of a vehicle traveling on a public street, highway, or road.”
Critics have expressed concern that the bill is overbroad, vague, and will chill free speech. Of further concern is that under the new law, peaceful protesters could be arrested and charged with a felony if others at a demonstration become violent or disorderly.
“The bill creates harsher misdemeanors and felonies for already existing offenses, yet law enforcement and prosecutors already have all of the tools needed to hold bad actors accountable for violence,” Micah Kubic, Executive Director of the ACLU of Florida, said in a statement.
“To be clear—the goal of this law is to silence dissent and create fear among Floridians who want to take to the streets to march for justice. It should not be a crime to exist in public space, yet that’s exactly what Gov. DeSantis has done—criminalized being at a protest just because someone else does something wrong,”Kubic added.
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.
Jan. 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.
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.
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.
On Dec. 14, the New York City Department of Investigation published an 111-page report analyzing the New York Police Department’s (NYPD) handling of the George Floyd demonstrations that took place between May and June.
The report found that police officers “often failed to discriminate between lawful, peaceful protesters and unlawful actors,” and that they frequently resorted to aggressive crowd control tactics that “reflected a failure to calibrate an appropriate balance between valid public safety or officer safety interests and the rights of protesters to assemble and express their views.”
“The department itself made a number of key errors or omissions that likely escalated tensions, and certainly contributed to both the perception and the reality that the department was suppressing rather than facilitating lawful First Amendment assembly and expression,” the report stated.
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).
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.
Aug. 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.
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.
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 18, 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.”
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.
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.
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.
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.
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.
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.”
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.”
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.”
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.”
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.
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.”