(The Sunlight Foundation, by Eliza Newlin Carney) When Colorado public school teachers rallied in Denver this spring to demand better school funding and retirement benefits, two fed-up GOP legislators had a novel idea: Why not pass a bill to fire the teachers and send them to jail? The legislation introduced by state Senator Bob Gardner and Representative Paul Lundeen would also have nullified any union contract between a district and striking teachers.
Gardner and Lundeen withdrew their bill in amid public outcry. But their bid to defang unions reflects the new face of the conservative movement to crack down on public protests in 2018. Not content to simply take aim at individual protesters, some Republican state legislators seem to be setting their sights this year on progressive institutions that have long been a thorn in conservatives’ side. This includes academic institutions rife with protest, labor unions backing striking teachers, and environmental groups aligned with anti-pipeline demonstrators.
It’s an insidious new twist in the anti-protest drive that progressive organizers say threatens not just individuals but social justice movements as a whole. Shut out of Congress, the White House, and the majority of state legislatures, progressives have taken to the streets—only to face a conservative backlash even there. In 2018, the state assault on protests broadened its sweep to target institutions at odds with the right, most notably environmental groups. The most popular form this institutional suppression has taken is bills that purport to protect “critical infrastructure,” but could effectively defund such high-profile environmental agitators as Greenpeace.
Eight states took up or enacted so-called critical infrastructure bills that impose harsh new fines and prison sentences on protesters who impede oil, gas, electric, and other public facilities. Some sought to fine “conspiring” organizations up to $1 million, potentially putting activist groups out of business. More than a dozen states also mulled “campus free speech” bills that would suspend or expel students who disrupt public speakers, and make it easier to sue colleges and universities.
Both the critical infrastructure and the campus speech bills took off thanks in part to model legislation authored by conservative organizations underwritten by the Charles and David Koch donor network. The Koch-backed American Legislative Exchange Council approved a critical infrastructure model bill in January, inspired by a new Oklahoma law that makes harming infrastructure a felony punishable by up to 10 years in prison. The right-leaning Goldwater Institute, another Koch-funded group, is the driver behind more than 30 campus free speech bills under consideration in 15 states.
The infrastructure bills, in particular, take direct aim at the entire social justice sector, says Poojah Gehi, executive director of the National Lawyers Guild, who calls the plan to impose seven-figure fines on assisting organizations “a terrifying precedent.” The bills are so broadly-written that even a group that helped house or post fliers for protesters might be held liable. Backed by powerful fossil fuels interests, the critical infrastructure bills appear deliberately designed to cripple environmental groups that helped rally protests against the Dakota Access pipeline.
This year’s critical infrastructure bills built on a wave of anti-protest legislation that began with Donald Trump’s election in 2016. Last year state lawmakers introduced more than 40 bills that took aim at protesters. Some expanded the definition of “riot” or “domestic terrorism,” some introduced new categories of crimes, such as “unlawful mass picketing,” some penalized protesters who block traffic or wear face coverings.
Many proposed prison time or fines into the tens of thousands of dollars, and proved too draconian even for Republicans. Of more than 40 anti-protest bills introduced in 2017, only seven were enacted into law. Another 22 died or were vetoed or defeated, and 17 carried over. In the 2018 legislative session, which is in the process of winding down, GOP legislators introduced more than a dozen new anti-protest bills, with varying degrees of success. Almost half of them went after protesters who impede so-called critical infrastructure, a dangerous turn that troubles civil rights advocates.
“There’s nothing in this bill that is going to prevent you from holding a peaceful protest,” insists Ohio State Senator Frank Hoagland, Jr., a Republican, who authored a pending critical infrastructure bill in Ohio that and would make it a first-degree felony to tamper with oil and gas pipelines, but also chemical trucks, rail cars, manholes and even telephone poles. The bill’s “main focus,” Hoagland adds, “is to protect the people. I believe if we don’t maintain communications and mobility, we will never be successful, as a district, a state and/or a country.”
But critics of such bills in Ohio and elsewhere say their over-broad definitions and harsh penalties threaten to intimidate would-be activists into silence. Existing laws already bar criminal trespass and vandalism. A bill that sailed through the Iowa legislature this year would create a new crime of “critical infrastructure sabotage,” defined as any “unauthorized act” that disrupts or “is intended to disrupt” critical infrastructure.
Such sweeping references to authorization and intent could capture protesters blocking the streets or sidewalks leading to public facilities, or whose actions economically harm a company in any way, says Iowa State Senator Rob Hogg, a Democrat. Under the Iowa bill, signed into law this spring by GOP Gov. Kim Reynolds, even public bus and other transit systems are considered critical infrastructure. Notes Hogg: “Rosa Parks did an unauthorized act, standing at the front of the bus, and she did so with the intent of boycotting the Montgomery bus system.”
Georgia, Louisiana, Minnesota, Pennsylvania and Wyoming also took up critical infrastructure bills. The Wyoming bill passed the legislature in February, but was vetoed by GOP Gov. Matthew Mead on the grounds that it was overbroad and duplicated existing laws. However, he encouraged the legislature to try again. The Minnesota bill also was vetoed. But ALEC forged ahead, inspired by an Oklahoma law that fines individual violators $100,000, and conspiring groups up to ten times that amount.
“They are trying to bankrupt and punish what they perceive to be movement organizations,” says Moira Meltzer-Cohen, a staff attorney with the Water Protector Legal Collective in North Dakota, which provides pro bono legal help to Dakota Access pipeline protesters charged at Standing Rock. Imposing such steep fines and long sentences “functions in the same way as prior restraint,” she warns. “It makes it so risky to engage in protected speech … that it will disincentivize people from doing so.”
Back to the Future
Government attempts to squelch public protest are nothing new, and the recent spate of bills carries echoes of the FBI’s surveillance and obstruction of civil rights and anti-Vietnam war activists under J. Edgar Hoover. It was following his imprisonment for protesting without a permit that the Rev. Dr. Martin Luther King, Jr., wrote his famous “Letter from Birmingham Jail.” The disclosure last year of an FBI report referencing “black identity extremists” protesting police violence recalls that era.
But the pace of anti-protest legislation roughly doubled in 2018, and legislators sought to impose more stringent penalties on a broader array of activities than ever before. Since November of 2016, 64 anti-protest bills have been introduced in 31 states, according to the International Center for Not-for-Profit Law.
One failed Arizona bill would have used racketeering laws to penalize protesters. Other bills brand protests as “economic terrorism,”would have imposed fines for blocking traffic, or even indemnify drivers who strike protesters in the street. (The driver indemnification bills lost momentum after counter-protester Heather Heyer was struck and killed last year by a driver who plowed into the crowd at a white nationalist rally in Charlottesville, Va.) One Georgia law enacted in May allows college administrators to suspend or expel campus protesters.
Last year, two United Nations human rights experts called on U.S. lawmakers to stop the “alarming” trend of “undemocratic” anti-protest laws, warning that it “threatens to jeopardize one of the United States’ constitutional pillars: free speech.”
Even some conservatives are crying foul. As a champion of campaign finance deregulation, the Institute for Free Speech does not often side with progressives. But in Reason magazine, one research fellow with the group warned: “Faced with the possibility of fines or legal battles, many will choose not to speak at all.” In a New York Times op-ed, John Hardin, with the free market Charles Koch Foundation, similarly warned that the Goldwater Institute’s model bill to sanction campus protesters has been “alarmingly influential,” and that academic censorship “is bad for everyone.”
Many peaceful protests by women, immigrants, Black Lives Matter activists and students promoting gun safety have unfolded without incident under President Trump. In the last two years, one in five adults have attended a political protest or speech, according to an April Washington Post/Kaiser Family Foundation poll. But Trump’s overt attacks on the news media and the judiciary, and on his public critics, have weakened U.S. moral authority at a time when crackdowns on public protest and dissent are on the rise in China, Russia, Turkey, and around the globe.
Trump has reinstated a program scaled back under President Obama that transfers surplus military equipment to police departments nationwide. The tone for his administration was set on Inauguration Day, when more than 200 people, including nine journalists, were arrested amid vandalism by the activist group Disrupt J20. A jury acquitted six defendants in December who had faced sentences up to 60 years for rioting and other felony charges, but several dozen defendants have yet to be tried.
“It still affects my daily life,” says Alexei Wood, a freelance photojournalist from San Diego who was among those acquitted in December. “I’m absolutely dealing with PTSD. The things that were easy for me to do are laborious at times. The police absolutely terrified me.” The police still have all his photography equipment, says Wood, 37, who spent a full year fighting eight felonies and a lifetime in prison.
The American Civil Liberties Union has sued Washington, D.C., and the city’s Metropolitan Police Department for engaging in a mass roundup, for subjecting nonviolent protesters to pepper spray, and for holding them for hours without access to food, water, or bathrooms.
Among those still facing trial is another journalist, Aaron Cantú, now a reporter with the Santa Fe Reporter, who faces multiple felonies for simply being at the scene, say his lawyers. Cantú’s indictment “would severely chill protected newsgathering activities,” argues a motion for his dismissal.
“We are seeing, now, law enforcement agencies like the D.C. police and the U.S. Attorney’s office take an extremely dismissive view of First Amendment freedoms,” says Scott Michelman, staff attorney at the ACLU of the District of Columbia. “And that should concern all of us. Because no matter what your political views are, the same first amendment applies to all sides. So it may be that anti-inaugural demonstrators are in the hot seat today. But Trump supporters may see their speech curtailed tomorrow.”
Many of the anti-protest bills under consideration raise constitutional questions because they set out to target specific categories of activists. A Missouri bill that would impose jail time for blocking highways or emergency vehicles came in direct response to highway protests following the police shootings of Michael Brown in 2014, and Anthony Lamar Smith last year. Authors of critical infrastructure bills have similarly cited the need to stop the Dakota Access pipeline protesters.
Yet the Supreme Court, in a 1962 case known as R.A.V. v. City of St. Paul, made clear that the government may not punish speech based on the ideas expressed. A number of the anti-protest bills on the table raise concerns about this type of so-called viewpoint discrimination, says Paul Nolette, an associate professor of political science at Marquette University.
“A lot of these bills are couched in very neutral language that, without the political context, the vast majority of people would say: This seems reasonable to me,” says Nolette. “But the problem to me is the context. These are not neutral bills. They are clearly a reaction to the legislators’ political enemies, and trying to crack down on them.”