Black Lives Matter protesters

Protesters congregate at Bayfront Park, Florida during a Black Lives Matter demonstration.

(Photo: Adam DelGiudice/SOPA Images/LightRocket via Getty Images)

The Republican War on Protests

Republican state legislators across 34 states have introduced more than 80 bills this year that criminalize protesting or protect those who harm protesters.

A black SUV, part of a Cubans for Trump caravan, rams into Jonathan Gartrelle, a Black Lives Matter activist at a small protest in downtown Miami on July 18, 2020. Video shows Gartrelle landing hard on the hood of the vehicle, then sliding off. The SUV speeds away.

The man who drove into Gartrelle, an unidentified Trump supporter, is the one who's pressing charges--against Gartrelle.

The driver claims Gartrelle stole a flag from his SUV. Police arrested Gartrelle a couple of days later, charging him with two felonies--one for escape and one for strong arm robbery--as well as misdemeanor counts of resisting an officer and obstructing a public street.

The law also makes it easier to charge entire groups of protesters for the actions of a single individual.

These charges are "hilariously overbroad," says Alex Saiz, Gartrelle's attorney and director of legal services for the Florida Justice Center. "As you read the arrest form, you think, 'This is nonsense.' "

Gartrelle is one of more than 14,000 demonstrators who were arrested at anti-racism protests during summer 2020.

Eventually, all of the charges against Gartrelle were dropped (except the misdemeanor for petty theft, still unresolved because of court delays related to Covid-19). But a new Florida law, part of a surge of draconian anti-protest state bills, puts future protesters at risk of far worse outcomes.

Signed into law in April, Florida's HB 1, the Combating Public Disorder bill, sets harsher penalties (and escalates some misdemeanor charges to felonies) for protesters who block roadways or deface public monuments. It also creates a new misdemeanor called "mob intimidation" and protects police budgets from cuts.

Dream Defenders, a youth-led, Miami-based abolitionist group (and member of the Movement for Black Lives), spearheaded an all-out campaign against HB 1 earlier this year. The organization sent tens of thousands of emails, canvassed, phone banked and hosted events to raise awareness about the "censorship bill," says Nailah Summers, interim co-director of Dream Defenders.

Republican Florida Gov. Ron DeSantis calls HB 1 the "strongest anti-rioting, pro-law enforcement measure in the country." But according to Max Gaston, staff attorney at the ACLU of Florida, "HB 1 is not an anti-riot law. It is an anti-protest law that suppresses First Amendment rights by criminalizing peaceful protest and silencing government dissent."

Under HB 1, Gaston says, "virtually every major demonstration in the last several years, from the Women's March to the March for Our Lives, would have involved a heightened level of danger from police and counter-protesters."

Law enforcement advocacy groups (particularly police unions) have lobbied hard for the new legislation--which generally increases discretion for police, prosecutors and judges-- in at least 14 states, contributing hundreds of thousands of dollars to the campaigns of the bills' sponsors.

"[HB 1] will almost inevitably result in more arrests, felony convictions and debilitating legal financial obligations," Gaston says. For example, the law "effectively authorizes police officers to decide in every instance what constitutes a riot, what conduct is criminal under the new law, and who can be arrested for merely assembling to highlight and discuss issues of public importance."

The law also makes it easier to charge entire groups of protesters for the actions of a single individual. If someone smashes a window during a protest, for example, any nearby demonstrator could face felony charges, Saiz says. This element of the law arguably creates an incentive for law enforcement to use unethical tactics to disrupt peaceful assemblies, such as planting provocateurs in crowds--a tactic wielded against civil rights groups in the past. From the FBI's COINTELPRO to the murder of Fred Hampton and countless other freedom fighters, law enforcement has long worked to protect white supremacy and destroy Black movements.

As for the driver who hit Gartrelle, new immunity protections from civil lawsuits for drivers who injure or kill protesters appear in bills passed in Florida, Oklahoma and Iowa, and have been introduced in Missouri and Nevada. Oklahoma's version even includes criminal immunity in some cases, which "emboldens those seeking to harm protesters," according to Gaston.

The new protection against civil liability comes in the wake of a number of instances of vehicle weaponization by people who align with the Right. Most infamously, in 2017, racial justice activist Heather Heyer was killed by a neo-Nazi driver in Charlottesville, Va., who also injured 19 other protesters.

According to the International Center for Not-for-Profit Law, Republican state legislators across 34 states have introduced more than 80 bills in the 2021 legislative season that criminalize protesting or grant civil immunity to people who harm protesters. Many of the proposed bills use language that copies elements of the Florida legislation. Some draw from a 2017 model bill drafted by the right-wing American Legislative Exchange Council at the behest of fossil fuel companies, the so-called Critical Infrastructure Protection Act. A response to the Dakota Access Pipeline protests, it set a precedent for severe criminal penalties against peaceful protesters.

Some of the new anti-protest bills extend beyond criminal punishment and cut basic benefits to people convicted of protest-related charges. A bill proposed in Minnesota, home of George Floyd and Daunte Wright, would make people convicted of a crime during a protest ineligible for student loans, food stamps, rental assistance and unemployment relief. SB 34, a Republican bill proposed in Indiana, would prohibit people convicted of unlawful assembly from holding state employment or elected office.

"The idea that the George Floyd protests were somehow so awful that we need to fundamentally change the way we see riots and protest is just complete fearmongering," Saiz says, adding that the intention is to create a chilling effect on free speech.

These anti-protest bills also come in the wake of an election cycle that saw record voter turnout and extremely close races-- most significantly in Georgia, where President Joe Biden won by a slim margin and two previously Republican-held Senate seats flipped in a run-off.

By creating new felony charges for protest, these bills threaten the constitutional right to vote. The vast majority of states disenfranchise people who have felony convictions--who are disproportionately Black--for some time. HB 1 creates "a substantial risk of disenfranchising more Black and Brown Florida voters," says Gaston, as citizens convicted of a felony are only eligible to vote after completing their sentence and paying often debilitating fines and fees. In 11 states, mostly in the South, an individual convicted of a felony can lose their voting rights indefinitely. In 18 states, people on parole or probation are barred from voting.

"Those wishing to exercise their First Amendment rights to assemble and protest" have no choice but to be "mindful of the risks HB 1 creates," Gaston says.

Organizers and activists around the country are girding themselves for the fight ahead.

In Missouri, a coalition of civil and human rights organizations, including the Organization for Black Struggle, came together in March to protest the state's anti-protest bill. In Oklahoma, dozens of demonstrators occupied the Capitol in April as the governor signed an anti-protest bill.

In some ways, Saiz says, the passage of HB 1 has galvanized demonstrators in Florida. "They feel like the government is actively trying to silence them," he says. "They feel like they have even more to protest. We've got clients who are planning protests of the anti-protest law."

The NAACP Legal Defense and Educational Fund, the ACLU of Florida and the Community Justice Project have also filed a federal lawsuit challenging Florida's law on behalf of a number of Black-led organizations, including Dream Defenders. The lawsuit argues that HB 1 violates the First and 14th Amendments by chilling protected speech, criminalizing protest and specifically targeting Black organizers.

Promises Nailah Summers, "We're putting our heart and soul into stopping this racist law."

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