Where Protests Flourish, Anti-Protest Bills Follow

Over the past year, a historic level of activism and protest has spilled out into our nation’s parks, streets, and sidewalks — places where our First Amendment rights are at their height. The January 21 Women’s March, anchored in D.C. with echoes across the nation, was likely the single largest day of protest in American history. And yet, legislators in many states have followed up on this exuberant activism with proposed bills that are not only far less inspiring, but also unconstitutional.

A few examples illustrate this pattern all too well.

  • After President Trump enacted his discriminatory Muslim ban at U.S. ports of entry, protests immediately erupted at airports nationwide, including a weekend-long protest at Denver International Airport. In response, the airport started enforcing a rule that requires protestors to submit an application a week before holding any demonstration.
  • In opposition to the construction of the Dakota Access pipeline, protestors and water protectors camped out for more than a year near North Dakota’s Standing Rock reservation. The protests were effective: They led the U.S. Army Corps of Engineers to deny a permit for the pipeline and delayed construction for weeks. The response? Legislators in North Dakota introduced a cascade of bills that would allow drivers to run over protesters obstructing a highway, as long as the drivers did so accidentally; would punish wearing a mask in any public forum or in a group on private property; would sentence protestors at private facilities with up to 30 days in prison; and would punish protestors who cause $1,000 in economic harm with 5 years in prison and a $10,000 fine.
  • In Minnesota, following the police shooting death of Philando Castile, protests caused part of a highway to shut down. Then, at the beginning of the state legislative session, Minnesota legislators drafted bills that would punish highway protestors with heavy fines and prison time and would make protesters liable for the policing costs of an entire protest if they individually were convicted of unlawful assembly or public nuisance.

Is this spate of anti-protest bills a coincidence? We think not.

Each of the protests described above reflects a success of our representative democracy: People came together, voiced their dissent, and created change. State representatives around the country should be celebrating the fact that their constituents are getting out into the streets and making their voices heard. 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. 

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Of course, these legislators don’t say their goal is to criminalize protest. For example, the sponsor of the North Dakota “motorist” bill claims the bill is required to protect the “legal exercise of [the] right to drive.” The sponsor of the Minnesota pay-to-protest bill explained his bill by saying (pretty astoundingly): “Rosa Parks sat in the front of the bus. She didn’t get out and lay down in front of the bus.” [This seems to have missed the point that Rosa Parks was, in fact, breaking an (unjust) law.]

But even if these bills are dressed up in language about public safety or the “right to drive,” their effect is singular: chilling protest.

Here’s why.

First, there isn’t a single city or county that can’t already prosecute people for intentionally obstructing cars or pedestrians or for trespassing on private property.

When protests were so robust that they spilled into the streets in Baton Rouge, for example, or into the Mall of America, the problem wasn’t that law enforcement lacked the ability to arrest anyone engaged in wrongdoing. Quite to the contrary, in both cases, the issue was that police relied on existing trespass or obstruction laws to dramatically — and unconstitutionally — overcharge peaceful protesters. Fortunately, the ACLU helped get those charges dropped in court. Addressing that should be the priority for lawmakers — not piling on to the arsenal of misdemeanors that police can already apply to protest-adjacent activity.

Second, let’s address the jaguar in the room: Drivers hate to be inconvenienced when robust protests block streets. (We get it — we’re impatient New Yorkers with places to go. Occasionally.) But driving isn’t a right — it’s a privilege. Protesting, on the other hand, and specifically protesting in the streets, is a fundamental constitutional right. Indeed, the Supreme Court has said that streets and sidewalks have “immemorially been held in trust for the use of the public” to make our voices heard. And, just as with nuisance and trespass, many existing laws manage to balance our right to protest with our ability to use the streets to drive.

Unlike constitutional laws, the proposed bills aren’t so carefully drawn. If passed, they would mean that if your foot slipped over the yellow line on the road because someone else at a well-attended protest jostled you, you’d risk jail time, insane fines, or even reimbursing law enforcement for all costs of monitoring the protest.

Most reasonable, law-abiding citizens would think twice before leaving the house to protest if those were the rules of game. And that effect is unconstitutional.

Fortunately, perhaps that message is getting through: Some of these bills have already died. The North Dakota motorist law has stalled in the face of national ridicule. And lawmakers defeated anti-protest bills in Virginia and Michigan, recognizing that they were unconstitutional.

Map: Where Anti-Protest Bills Have Been Introduced in State Legislatures

Legislators in states with robust protest activity should have one priority: listening to those voices (even if, and perhaps especially when, they disagree with them). Sadly, we’re seeing a different trend — one that tries to silence them. In a year of historic activism, that response isn’t just unconstitutional: It’s fundamentally un-American. And we at the ACLU will stay on tight defense throughout this legislative session to fight against any bill that violates the First Amendment. And if one should pass, we’re hopeful the courts will see these bills for what they are: unlawful infringements on our right to speak.

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LOrion

See my thread @LOrion where I just put up great cartoon of TRUMP waging unsuccessful war on Ladies Liberty and Justice.

Anonymous

Right. Because they "love the Constitution so much" when it's their sainted SECOND Amendment right but NOT when it's something they DON'T like. Gimme a gd break.
I wouldn't even BE on their stupid-ass disability if it weren't for getting shot by someone who had no business with a gun, who shot me three times and at least for 10 minutes actually killed me. There's such a thing as giving UP your right and he was definitely one of the people who did.

DG

Did you have an NDE?

Anonymous

Liberals like those in the Aclu are insane. They hate America. They want to protect protest when its a bunch of lazy, communist, anti Americans in the street who want to protest because its a liberal cause. The Aclu will never stand up for conservatives. But of course conservatives dont stand in the streets and burn cities down like unemployed liberals.

Shirley Watson

I'm a conservative. I'm fully employed, LOVE America, love it enough to serve my country for 13 years in the army. Went to Iraq on 2 separate deployments. Did you? Believe the ACLU fights for all of human rights, not just the left. But I've been standing with protestors since the 21st of January. It must really suck to be SO WRONG on your assessment.

Anonymous

Such tiresome rhetoric that you espouse, this "unemployed liberals" crap. Progressive/liberal people are, in general, far more educated than RWNJ's. Of course, we work. Some of us are very likely your supervisors.
Your words clearly show how limited your thinking and worldview are. Sadly, your cognitive and personality defects are representative of the larger group of idiots who got this dangerous dictator w Putin's hand up his ass elected. If you haven't already, please don't reproduce.

Anonymous

Such tiresome rhetoric that you espouse, this "unemployed liberals" crap. Progressive/liberal people are, in general, far more educated than RWNJ's. Of course, we work. Some of us are very likely your supervisors.
Your words clearly show how limited your thinking and worldview are. Sadly, your cognitive and personality defects are representative of the larger group of idiots who got this dangerous dictator w Putin's hand up his ass elected. If you haven't already, please don't reproduce.

Anonymous

You are deluded. I'm a liberal. I am very well informed. I have a really good job. You have a very narrow view of liberals. I support all the protesting in the world right now. Not because a Republican took office but instead because a Authoritarian wolf in sheep's clothing just took power who was aided by the Russians. If you want to go pointing fingers about patriotism take a look in the mirror at the person that put party above country by ignoring Russian interference in our democratic process.

Like you actual...

America isn't easy. America is advanced citizenship. You've gotta want it bad, cause it's gonna put up a fight. It's gonna say 'You want free speech? Let's see you acknowledge a man whose words make your blood boil, and who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.' You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.

We have serious problems to solve, and we need serious people to solve them. And whatever your particular problem is, I promise you Trump and the GOPers are not the least bit interested in solving it. They are interested in two things, and two things only : Making you afraid of it, and telling you who's to blame for it. That, ladies and gentlemen, is how you win elections. You gather a group of middle age, middle class, middle income voters who remember with longing an easier time, and you talk to them about family, American values and character and you scream about "fake news" and you scream about protestors. You tell them they're to blame for your lot in life. And you go on television and you yell "Grab Them By The Pussy".

Chrisitna Gutmann

I love America -or perhaps it is more accurate to say -I love what I believe America stands for. While fighting for my rights & others I also fight for yours. Which of your is being violated -that you need the ACLU to stand up for? By the way -just like Mexican's are not all rapists & criminals -not all liberals burn down cities. If we did -there would be nothing left -we are many!

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