Analysis of US Anti-Protest Bills

The freedom of peaceful assembly is enshrined in the First Amendment of the U.S. Constitution. Whether it was the struggles of the founding fathers, or movements for women’s suffrage and racial justice, the right to protest is critical to ensuring everyone’s voice is heard and progress is made.

Anti-Protest Bills Introduced in Response to Protest Movements

Since January 2017, the U.S. has seen a wave of anti-protest bills introduced by state and federal lawmakers that would limit the right to protest. These bills are often introduced in response to prominent protest movements, including for racial justice, against the construction of oil and gas pipelines, campus demonstrations, and better working conditions for teachers.

This anti-protest legislation is not only unnecessary but undermines constitutional rights. The overwhelming majority of protests in the United States are non-violent, and it is already illegal to destroy property or engage in violence. Instead of refining or better targeting existing law to address legitimate needs, these bills can be used as blunt instruments against peaceful and constitutionally protected protest.

protest with fist raised (photo credit: unsplash.com)

This analysis is based on data from the US Protest Law Tracker.

Recent anti-protest legislation restricts the freedom of assembly in a variety of ways. Some bills control the traditional elements of where, when, and how people can assemble; others create extreme penalties for common infractions connected with protests like blocking sidewalks or streets; some create liability for protesters or organizers for the criminal actions of others; and others limit liability for those who commit violent acts against protestors, such as hitting them with their vehicle. Many bills include multiple types of these provisions that undermine peaceful demonstrations.

Common Ways Anti-Protest Bills Undermine Peaceful Demonstrations

Extreme penalties for offenses commonly related to protest

A 2020 bill enacted in Tennessee makes it a Class A misdemeanor, punishable by a year in jail, to obstruct a sidewalk or street, even though most protests occur on sidewalks and streets. Many bills target environmental demonstrators who frequently protest near the site of fossil fuel pipelines by creating extreme penalties for either trespassing near a pipeline or interfering with the construction of one. In Louisiana, a bill enacted in 2018 makes it a felony, punishable by five years in jail, to trespass near a pipeline, chilling the ability of demonstrators to protest close to pipelines or their construction sites.

Vague and overbroad provisions that can capture peaceful protesters

Many anti-protest bills include anti-riot provisions that cover activities that most would not consider rioting. In Florida, a new law enacted in 2021 makes it a felony to “riot.” However, “rioting” is defined in a manner that can capture peaceful protesters who are simply part of a larger crowd where a handful of individuals engage in property destruction, even for something as simple as kicking over a trash can. In fact, under the law no property destruction at all is required for those in a crowd to be guilty of “rioting,” just the “imminent danger” of damage. These provisions give wide discretion to law enforcement and prosecutors, which can easily be used against peaceful protesters.

Expanding Liability

A 2017 bill enacted in Oklahoma creates liability of up to $1,000,000 for organizations that “conspire” with protesters that trespass near an oil and gas pipeline, creating new dangers for groups that want to organize protests near pipelines. Meanwhile, a bill that passed the House in Oklahoma in 2021 added “unlawful assembly” as an offense that can be prosecuted under the state’s RICO statute, meaning that if a group or individual “attempted” to encourage individuals to engage in a nonviolent demonstration deemed an “unlawful assembly” they could be subject to felony penalties. Nonprofits, religious organizations, and others will be much more reluctant to support or organize protected protests if they fear they could face fines, civil liability, or criminal penalties if an assembly is later deemed a “riot,” “unlawful,” or someone at that protest breaks the law.

Encouraging Violence against Protesters

A bill in Iowa, enacted in 2021, shields drivers from civil liability if they injure or kill someone who is unlawfully blocking a road during a “protest, demonstration, riot, or unlawful assembly,” if they did so while exercising “due care.” In 2020 alone there were over a hundred instances of protesters being hit by vehicles. Other bills, including a 2021 bill enacted in Florida, provide an exemption from civil liability to anyone who injures or even kills a protester as long as the victim was most likely participating in a “riot.” Bills like this are viewed by many as designed to intimidate and even actively encourage violence against protesters.

The last five years have seen a resurgence of demonstrations in the United States. Anti-protest bills are both an unnecessary and unconstitutional response. Most protests are non-violent, and states already have the tools they need to prosecute those who commit crimes during demonstrations. State legislatures should take steps to support, rather than undermine, the country’s proud tradition of peaceful protest and fundamental First Amendment rights.

Last updated July 23, 2021

For more information contact: Nick Robinson at nrobinson@icnl.org