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. But in recent years, the right has been under attack.

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

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

Anti-Protest Bills Introduced in Response to Protest Movements

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

Anti-protest bills undermine our First Amendment right to freedom of assembly. While lawmakers often claim that the bills are needed to prevent violence, the overwhelming majority of protests in the U.S. are nonviolent, and states already have laws prohibiting property destruction and violent conduct. Instead of refining or better targeting existing law to address legitimate needs, lawmakers have proposed bills that can be used to restrict peaceful and constitutionally protected protest.

US Legislation Affecting Protest Rights: By Year
US Protest Law graph

How Anti-Protest Bills Undermine Peaceful Demonstrations

EXTREME PENALTIES FOR PROTEST-RELATED OFFENSES

Many anti-protest bills restrict the freedom of assembly by creating extreme penalties for common infractions connected to protests. A 2020 law enacted in Tennessee makes obstructing a sidewalk or street an offense punishable by a year in jail, even though most protests occur on sidewalks and streets. Other bills target environmental demonstrators who protest near the site of fossil fuel pipelines, by creating extreme penalties for either trespassing near a pipeline or interfering with pipeline construction. In Louisiana, a law 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

Many anti-protest bills use sweeping definitions of “rioting” and other offenses that can penalize nonviolent protest activity. In Florida, a 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 few individuals engage in property destruction—even something as minor as kicking over a trash can. In fact, under the law, no actual property destruction needs to occur for those in a crowd to be guilty of “rioting”—just the “imminent danger” of damage is sufficient. These provisions give broad discretion to police and prosecutors to wield the law against nonviolent protesters.

Expanding Liability

A number of anti-protest bills create chilling new risks for organizations and individuals who are not directly involved in protests. Under a 2017 law enacted in Oklahoma, organizations that “conspire” with protesters who trespass near an oil or gas pipeline are liable for up to $1 million—a significant deterrent for groups involved in organizing anti-pipeline protests. In 2021, the Oklahoma House also passed a bill that would make “unlawful assembly” an offense that can be prosecuted under the state’s RICO statute, meaning that if a group or individual “attempted” to encourage people to engage in a nonviolent demonstration that police deemed an “unlawful assembly,” they could be subject to felony penalties. Nonprofits, religious groups, and others will be much more reluctant to support or organize protected protests if they face possible penalties for the unlawful actions of others.

Encouraging Violence against Protesters

Many anti-protest bills create new protections for individuals who harm protesters. An Iowa law enacted in 2021, for instance, 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,” as long as the driver was exercising “due care.” In 2020 alone, there were over one hundred instances of protesters being hit by vehicles. Other bills, including a Florida law enacted in 2021, protect someone who injures or even kills a protester from being sued, as long as the victim was most likely participating in a “riot.” Bills like this are viewed by many as designed to intimidate protesters and even actively encourage violence against them.

The last five years have seen a resurgence of popular protests and demonstrations in the United States. Anti-protest bills are both an unnecessary and unconstitutional response. State legislatures should take steps to support, rather than undermine, our fundamental First Amendment rights and honor our country’s proud tradition of peaceful protest.

Last updated January 12, 2022

For more information contact: Elly Page at epage@icnl.org