Whose streets? Anti-protest bills’ chilling effect on democracy

‘Fortress DC’ Foreshadows Dangerous Anti-Protest Measures
March 23, 2021
We Still Stand With Daniel Hale
March 31, 2021

By Cody Bloomfield

In recent years, millions of people have turned out to protest police brutality, former President Trump, the Dakota Access Pipeline, and gun violence, among other issues. Legislators in 45 states have responded to this surge in civic participation by proposing bills that limit protest targets, criminalize dissent, and empower anti-protest vigilantes. This anti-protest backlash has marked many successes: 26 bills have been enacted and 73 are moving through state legislatures as of March 12, 2021.

A large proportion of proposed anti-protest bills fail in the state legislature or fall under legal challenge. Yet even the legislative graveyard can have severe negative implications for dissent. People reading reporting about these bills could come away with the impression that attending a protest could mean jail time or large fines. Dissenters encounter a complicated legal landscape, and confusion can have a chilling impact on dissent. 

Anti-protest bills create false dichotomies between legitimate and illegitimate forms of protest.

Some anti-protest bills seek to prevent future activists from employing tactics used in highly visible recent mass mobilizations. Many bills in the 2021 state legislative cycle are either responses to last summer’s Black Lives Matter (BLM) protests or simply recycled anti-BLM or anti-Standing Rock bills from previous years. The myth of the “paid protestor” is also often cited as the impetus for passage of anti-protest bills.  This justification for anti-protest bills often taps into myths and falsehoods targeted at undermining protest. 

Here are common themes in anti-protest bills:

Redefinition of “riot” and other terms

Many proposed bills redefine “riot” and other loaded terms to include a broader range of protest actions. A Nebraska bill would redefine “riot” to include any disturbance involving more than three people that obstructs government functions. An Alabama bill went even further in expanding its definition of riot to include loud but peaceful protests. In a particularly egregious example of linguistic creativity, Washington state introduced a bill in 2016 redefining some protests as “economic terrorism.”

Characterizing more protests as riots (with the accompanying criminal penalties) leeches power from protests. Aside from discouraging would-be protestors from turning out, categorizing more protests as riots contributes to delegitimizing protest causes. News media frequently describe Black and Brown-led protests, especially Black Lives Matter protests, as “riots” instead of the more neutral “confrontations” or “protests,” and are more likely to focus on violence and property destruction instead of the concerns of the protestors. Characterizing more protests as “riots” focuses the discussion on property destruction and crime rather than on policy and protest goals.

Expanding criminal penalties

The proposed slate of bills poses serious risks to dissent. Blocking traffic, trespassing, destruction of property, and vandalism already have criminal penalties in most states. Explicitly linking these actions to protest may have a chilling effect on dissent because would-be protesters may come away with the impression that attending any type of protest entails a high risk of committing a crime.  Many states have increased fines, lengthened jail time, and introduced mandatory minimum sentences for protest-related offenses.

Since 2017, many state legislatures have passed “critical infrastructure” bills following the Dakota Access Pipeline protests at Standing Rock. These bills criminalize nonviolent protests that interfere with normal operation of oil pipelines, highways, and other infrastructure. South Dakota went so far as to confer civil liability for people or organizations that provided “advice or encouragement” to protestors. (After a settlement, the state will no longer enforce that provision of the law but it remains on the books.)

Empowering anti-protest vigilantes

In several states, anti-protest bills decriminalize vigilante violence against protestors. A proposed bill in New Hampshire empowers third-party bystanders to use deadly force against anyone they believe is “likely” to use “any unlawful force” while rioting. This week, Oklahoma passed a bill that protects drivers who unintentionally injure or kill protestors while “fleeing from a riot.” At the same time as protest is constrained by the legal system, extralegal violence against protestors is increasingly permitted. 

These bills mark a concerning trend of suppressing dissent through creating a culture of confusion and fear surrounding protest. Check out the ICNL US Protest Law Tracker to learn about anti-protest bills moving through your state’s legislature.