By Larry J. Schweiger
Pittsburgh Current Climate Columnist
Republicans alarmed by Black Lives Matter protests are striking back. Apparently not concerned about oppressive and deadly police practices, red states lawmakers are targeting protestors aimed at shutting down future Black Lives Matter demonstrations. The US Protest Law Tracker follows initiatives at the state and federal level since November 2016 that restrict the right to peaceful assembly. To date, 45 states are considering 220 bills. Thirty state laws restricting the right to peaceful assembly have been enacted and 68 more are pending across America.
A new law signed by Republican Governor Kevin Stitt in Oklahoma establishes penalties for demonstrators blocking public roadways during a protest. Streets are off limits in protests. Blocking a street is now a misdemeanor punishable by up to a year in county jail and a fine ranging from $100 to $5,000. During a recent Black Lives Matter protest, a panicked white driver drove his truck and horse trailer through a crowd of protestors, injuring several and paralyzing one. To protect future (read “white”) drivers hitting (read “black”) protestors, the law also grants immunity to motorists who “unintentionally kill or injure protesters” while attempting to flee. Writing for the Hill, Mychael Schnell explains, “the bill grants civil legal immunity to individuals who drive through roads that protesters block off, makes blocking a highway a felony offense, and it prohibits protesters who are arrested during a riot from posting bail until after their first court date.”
Florida Gov. Ron DeSantis (R) who is eyeing a run for the White House recently signed a law creating more voter restrictions and House Bill 1, a terrible anti-protest bill. Calling it “the strongest anti-rioting, pro-law enforcement piece of legislation in the country” DeSantis is pandering to the racist Trump base with his euphemistically “anti-riot bill.” DeSantis claims the law will crack down on “agitators.” Overriding local governments duty to budget, Florida now requires cities to receive state approval before cutting police budgets. It is now a felony to burn a flag or destroy historical structures, and memorials during protests. HB1 guarantees jail time for those arrested for protesting police brutality, climate change or others seeking redress of grievances. The law includes many other penalties, including increasing the charge for battery on a police officer during a riot to a minimum of six months in jail. No consideration is given for battery by aggressive police officers who beat innocent protestors with clubs.
We often take certain things for granted including the right to protest under the Constitution. The recent spike in bad laws is just the beginning of state efforts to suppress minorities and prevent US citizens from voting and protesting bad policies and practices. These laws limit our ability to come together publicly, using our numbers to fight for societal change.
The Bill of Rights of the U.S. Constitution explicitly prohibited Congress from limiting freedom of religion, freedom of speech, freedom of the press, or freedom of assembly. The first amendment to the Constitution sets forth, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment, like the rest of the Bill of Rights, originally did not bind the states. For much of our Nation’s history, the courts limited this prohibition to Congress. However, during reconstruction, the 14th Amendment was added to the Constitution prohibiting states from denying people “liberty” without “due process” declaring, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Since then, the U.S. Supreme Court has gradually accepted that the due process clause applies to most of the Bill of Rights to state and local governments. From the 1920s to the ’40s the Supreme Court applied all the First Amendment clauses to the states. Thus, the First Amendment amplified by the 14th Amendment now covers actions by federal, state, and local governments and applies to all branches of government, including legislatures, courts, juries, executive officials, and agencies.
In a piece by John Inazu and Burt Neuborne entitled “Right to Assemble and Petition” The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. “The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that ‘the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.’”
The recent surge in anti-protest legislation like so many recent bad laws started with the American Legislative Exchange Council better known as ALEC. ALEC is a dark-money-funded group (funded by Koch, EXXON, and other industry groups) that marries unelected corporate lobbyists with lawmakers to co-write ideal (for industry) bills. ALEC crafted a “model anti protest bill” in the wake of the 2016 Dakota Access Pipeline protests to establish severe criminal penalties, including imprisonment, for people who enter property containing oil and gas sites and other so-called “critical infrastructure facilities” without permission. The so-called “model bill” also calls for criminal penalties for organizations found to have “conspired” with individuals who are convicted of trespassing at critical infrastructure sites. According to Bloomberg, the so-called model bill was spearheaded by ALEC member American Fuel and Petrochemical Manufacturers (AFPM) and Marathon Petroleum, which has a minority stake in the Dakota Access Pipeline project.
Since crafting the anti-pipeline protest bill, eleven states have adopted versions of it, and at least nine states currently have versions of the ALEC bill introduced in their legislatures and are considering whether to adopt them. The bills that passed were shepherded through the legislative process by dues-paying ALEC legislators while ALEC companies in the energy sector disclosed lobbying for them.
The many far-reaching laws have been designed to end pipeline and other climate protests and to stifle protests over repeated episodes of blatant police violence. When a highly vocal chorus of ill-informed lawmakers repeatedly reject the evidence of police abuse or ignore scientific truths of the climate crisis and pursue myths and alternative facts concocted by those who obfuscate, we must ask, perhaps America as a society is encountering the very boundaries of human enlightenment and even the fundamental essence of humanity. I for one certainly hope not but that is no longer a given.
Astrophysicist Neil deGrasse Tyson said it best: “The good thing about science is that it’s true whether or not you believe in it.” Whether policymakers believe in science or not is irrelevant, facts are stubborn and cannot be just legislated away. Should society irrationally abandon authoritative science and turn once again to superstitions and myths then we will certainly drift into the tyranny that created the Dark Ages.
The Republican lawmakers’ goal is to crush resistance to fossil-fuel pipelines and silence minority voices. In doing so, they have encroached on the fundamental rights of all Americans to assemble in order to redress grievances against their government peaceably. We have witnessed the crushing of protests in Russia, China, and other autocratic governments. This must never happen in a democracy. In the end, these laws will find their way to the Federalist-Society-dominated U.S. Supreme Court. The dangerously lopsided Court will need to decide if these laws violate the fundamental rights granted by 1st Amendment expanded by the 14th Amendment. Demonstrations are fundamental to American democracy, let us hope the Supreme Court protects our right to assemble peaceably.