The Newseum Institute’s First Amendment expert, Lata Nott, originally published this podcast on the Newseum blog, and has given First Amendment Watch permission to reprint.
Rightly or wrongly, certain First Amendment issues tend to dominate the national conversation more than others. Bring up President Trump’s tweets criticizing the news media, college campus protests of controversial speakers, or the possibility of the government regulating Facebook and you’re bound to inspire a rousing and possibly heated discussion. Mention that state laws protecting critical infrastructure might actually erode the right to assemble and you’re more likely get blank stares and a hasty topic change. After all, it’s an issue that combines the freedom of assembly, which barely anyone knows about, with state and local law, which barely anyone cares about. Throw in the word “infrastructure” and it’s practically anti-clickbait.
Nevertheless, it’s an issue worth paying attention to. At the end of March, legislators in Louisiana and Minnesota proposed bills that would criminalize the activities of groups protesting the construction of oil pipelines (that would be the infrastructure we’re talking about). At least five other states have passed or are attempting to pass similar laws, seemingly inspired by the protests at Standing Rock, which delayed construction of the Dakota Access Pipeline. The American Legislative Exchange Council, an organization of state legislators with libertarian principles, even wrote a model policy for states to use as a template. ALEC’s rationale? “Whether it’s vandalism or protesters turned violent, a few people can cause tremendous harm to their fellow citizens by damaging critical infrastructure sites. Stopping the flow of a pipeline can cause pressure to build and puts thousands at risk of harm from an explosion. While peaceful protests are an important part of Americans’ right to free speech, causing damage and putting others at risk of harm is not.”
You may be thinking that this sounds reasonable enough. But the proposed Louisiana and Minnesota laws go beyond preventing protesters from causing damage to infrastructure. In Louisiana, it’s already a crime to trespass into a critical infrastructure facility. If the new law passes, it would be a crime to conspire to trespass into a critical infrastructure facility, one punishable by up to five years of prison. (The sentence increases to six to 20 years in prison if it’s determined that the conspiracy to trespass could lead to disruption of the infrastructure.) To be clear, the term “conspiracy” merely requires two or more people to agree to do something and at least one of them to take some action to further that objective. The proposed law also expands the definition of “critical infrastructure” to include pipeline construction sites. To review: If this law passes, a protester could go to prison for participating in a peaceful protest at a pipeline construction site…or for taking part in a discussion about that possibility.
In Minnesota, the proposed law would allow anyone who “recruits, trains, aids, advises, hires, counsels, or conspires” with someone who trespasses into a critical infrastructure facility to be charged with a misdemeanor, punishable by one year in jail — or a felony, punishable by 10 years in jail, if the trespasser intended to “substantially disrupt” the facility. Again, this could mean jail time for people who simply take part in a discussion about a peaceful protest, or even people who provide protesters with water or medical attention. And as the International Center for Not-for-Profit Law puts it in their U.S. Protest Law Tracker, “the phrase ‘significantly disrupt’ could be construed to encompass peaceful protests that block access to infrastructure, for instance, which under Minnesota law is broadly defined to include bus stations and bridges.”
As Americans, one of our core freedoms is the right to assemble peacefully in a public space. Like all of our rights, it’s not without limits — the government can place restrictions on when and how we exercise it, and it can decide that certain facilities do not qualify as public spaces. But these proposed laws seem specifically designed to intimidate and dissuade people from protesting at all. If you show up for a protest that takes place in a public space near a pipeline construction site, will you face criminal charges if some of your fellow protesters start talking about trespassing onto the site? Will you face charges if you show up at a meeting to discuss ways to oppose the pipeline and the possibility of trespassing comes up? It’s hard to be certain, and that seems to be the point.
Both of these bills are currently pending (the Louisiana bill is slightly further along, having been approved by the state’s House of Representatives in April). Whether you’re a staunch environmentalist or a lover of pipelines, and however far you might live from Louisiana or Minnesota, this should concern you.