Pen America Finds Surge in Anti-Protest Bills as State Legislators Escalate First Amendment Crackdown

State lawmakers across the country have accelerated their crackdown on constitutionally-protected protests, proposing a wave of legislation over the past year that would heap fines, fees, and criminal penalties on those seeking to protest. A new analysis from the free expression group PEN America--Closing Ranks: State Legislators Deepen Assaults on the Right to Protest--shows that from June 2020 through mid-March of this year--squarely in the wake of George Floyd's murder--state lawmakers have proposed 100 anti-protest bills, a rate of some ten bills per month compared to just three bills per month earlier in 2020. While only a handful have become law, states like Florida and Alabama have enacted draconian bills in recent weeks that take aim at the First Amendment right to free assembly. PEN America has also published an index of all the proposals.

PEN America's analysis found that 29 of these proposed laws are what the organization labels "kitchen sink" bills, or those that cram multiple anti-protest provisions into a single legislative package. The proposed laws frequently zero in on tactics used by Black Lives Matter protesters, disproportionately increasing punishments for blocking traffic or toppling monuments--actions that are often already illegal. The penalties often go beyond prison terms, eliminating demonstrators' eligibility for public employment and government benefits as well. Some bills even take aim at protesters' physical safety, incentivizing more heavy-handed police responses to demonstrations while granting legal immunity to drivers who hit protesters.

"This flood of anti-protest bills is a direct threat to the First Amendment," said Nora Benavidez, PEN America's director of U.S. free expression programs. "The trend of criminalizing protest has been apparent since 2017, but the dam has broken since last summer. State legislators are plainly seeking to suppress one of the largest protest movements in our country's history, punishing current Black Lives Matter activists and deterring future participants from hitting the streets. Particularly insidious is the attempt to strip demonstrators of their healthcare and unemployment benefits during a pandemic."

Among PEN America's additional findings:

• Of the 100 bills introduced in the time period PEN America analyzed, six have been signed into law. Sixty-four bills are still pending in state legislatures, while 30 have not moved forward.
• Two proposals from 2020, Tennessee's HB 8005 and Florida's Combating Violence, Disorder and Looting and Law Enforcement Protection Act, were among the most influential in the surge of bills, with their "kitchen sink" formats and provisions copied by lawmakers across the country for the 2021 legislative session.
• Compared to prior bills, those in the past year make penalties harsher and farther-reaching. A Michigan proposal sought to revoke public assistance benefits for any protesters charged with--not convicted of --looting or vandalism; a similar bill in Utah would make anyone convicted of "felony riot" ineligible to receive government benefits or hold public employment.
• Some proposals also include provisions that intend to punish not just protesters or protest organizers, but even civil rights groups that hold "know your rights" trainings, like an Ohio bill proposed last year.

While most of these bills have been pushed by Republican legislators, some GOP lawmakers have expressed concerns with these attempts to quash First Amendment protections. Said one Florida GOP lawmaker: "While I agree we have to support law enforcement 100 percent, we also have to recognize the right afforded to citizens to peacefully protest."

PEN America has a database of all the bills analyzed. Today's analysis comes after PEN America's landmark 2020 study Arresting Dissent, which documented 116 anti-protest bills over the course of four years.