As protest movements against racist police violence, planet-destroying pipelines, and the policies of President Donald Trump have intensified and spread rapidly across the U.S. in recent years, so have efforts by state lawmakers from both major political parties to criminalize protest by hitting peaceful demonstrators with draconian jail sentences and financial penalties.
"The sudden increase in the number of anti-protest bills introduced at the state level in 2017 coincided with a burst of public protests following the election of President Donald Trump."
That's according to a new policy paper released Wednesday by PEN America, which found that between 2015 and 2019, state lawmakers have introduced a total of 116 bills aimed at curtailing protest rights, 23 of which have become law in 15 states. In 2020, an additional 16 anti-protest bills have been introduced and four have become law.
Nearly a third of all states have implemented restrictions on the right to protest over the past five years, the report found.
"The right to protest is enshrined in the First Amendment, and a bedrock element of the free speech rights we enjoy as Americans," Nora Benavidez, PEN America's director of U.S. free expression programs, said in a statement. "Yet as individuals have exercised these rights more visibly and volubly in recent years, there has been a determined movement, occurring largely outside the public eye, to delegitimize public protest and paint demonstrators as dangerous or even criminal."
PEN America is part of the PEN International network which defends free expression and fights censorship and repression of artists, writers, and others worldwide.
The new report—titled "Arresting Dissent: Legislative Restrictions on the Right to Protest"—connects the sharp uptick in state anti-protest proposals in 2017 to the surge in mass demonstrations that followed Trump's election to the presidency in 2016. According to the paper, 56 anti-protest bills were introduced at the state level in 2017, up from just six such proposals in 2015 and 2016 combined.
"The sudden increase in the number of anti-protest bills introduced at the state level in 2017 coincided with a burst of public protests following the election of President Donald Trump, from the Women's March the day after the 2017 inauguration to spontaneous demonstrations against the Trump administration's travel ban at airports across the country in early 2017," the report notes. "It also followed a year of significant protests by Native American communities against the Dakota Access Pipeline in North Dakota."
The trend of lawmakers introducing anti-protest legislation in the wake of major demonstrations has been most prominent in Minnesota, Missouri, Massachusetts, and North Dakota, PEN found.
"North Dakota is the site of the Standing Rock protests against the Dakota Access Pipeline," the report says. "The protests in Ferguson, Missouri—as well as in Massachusetts—brought the Black Lives Matter movement to national recognition. Minnesota, meanwhile, has hosted major Black Lives Matter, anti-Trump, and environmental protests. These states are also among those that have seen the highest number of anti-protest bills introduced between 2017 and 2019: Minnesota saw nine bills, Massachusetts with thirteen, Missouri with eight, and North Dakota with seven."
In an article last October, ACLU attorney Vera Eidelman described the wave of anti-protest bills as "a direct reaction from politicians and corporations to some of the most effective tactics of those speaking out today, including water protectors challenging pipeline construction, Black Lives Matter, and those calling for boycotts of Israel."
PEN's report describes in detail a number of proposals and laws cracking down on protest at the state level, including a Texas law enacted in 2018 that makes "interference" with "energy infrastructure construction"—e.g., pipelines—"a third-degree felony punishable by two to ten years imprisonment—equivalent to the punishment for the crime of attempted murder."
"Even in these unprecedented times, while some constraints on our liberties may be necessary to preserve public health, we must ensure that the right to publicly and peacefully express our views is safeguarded."
—James Tager, PEN America
A Louisiana law passed in 2018 "targets protests near gas and oil pipelines by expanding the definition of critical infrastructure and providing for the offense of unauthorized entry of a critical infrastructure," the report notes. Protesters arrested for trespassing under the law could be hit a with felony charge carrying up to five years in prison.
"Since the law took effect, fourteen protesters and one journalist have been arrested under its provisions," PEN said.
PEN argues that while there may be good public health reasons to impose temporary restrictions on mass gatherings during the Covid-19 pandemic, "it is critical that such constraints occur within the boundaries of the Constitution and with a long-term view to protecting Americans' protest rights."
The group points out that the enthusiastic support that right-wing protests against coronavirus lockdown measures have garnered from Trump and other Republican politicians "is potent evidence of the political motivations that have shaded" crackdowns on protest rights in recent years.
"In some instances these measures have been tailored in ways that reveal a determination to suppress the robust expression of particular viewpoints, for example by banning protests near public infrastructure projects that have been flashpoints for environmental concerns," said Benavidez. "At the same time, the president expresses hostility towards certain protest movements, and vociferous support for others, depending on whether or not they align with his views."
"This selective approach to respect for First Amendment rights," Benavidez warned, "flies in the face of the constitution and poses a danger to the expressive rights of all."
James Tager, PEN's deputy director of free expression research and policy, said in a statement that the "explosive number of bills across so many states points to an increasingly hostile attitude among legislators toward protesters."
"Even in these unprecedented times, while some constraints on our liberties may be necessary to preserve public health," Tager said, "we must ensure that the right to publicly and peacefully express our views is safeguarded."