New Anti-Protesting Legislation: A Deeper Look

By Traci Yoder, National Lawyers Guild

04 March 17

n recent weeks, multiple articles have pointed to the wave of new anti-protesting bills introduced in state legislatures since the end of 2016. The Intercept, Washington Post, AlterNet, Democracy Now!, and other news outlets have provided overviews of the types of bills under consideration, the potential chilling effect on protests, and the unconstitutional nature of these measures. Because NLG has a long history of protecting the right to dissent, we offer the following summary and observations based on decades of experience providing legal support to social movements and monitoring the policing of protests.

The current round of legislation—introduced by Republican lawmakers in 19 states—attempts to criminalize and penalize protesting in various ways. Many states are drafting bills to increase fines and jail sentences for protesters obstructing traffic (Minnesota, Washington, South Dakota, Indiana, Florida, Mississippi, Iowa), tampering with or trespassing on infrastructure such as railways and pipelines (Colorado, Oklahoma), picketing (Michigan, Arkansas), wearing masks (Missouri), or refusing to leave an “unlawful protest” (Virginia). Particularly alarming are bills removing liability from drivers who “accidentally” hit and kill protesters (North Dakota, Tennessee, Florida). A bill in Indiana initially instructed police to clear protesters from highways by “any means necessary.” Other legislation has proposed labeling protests as “economic terrorism” (Washington, North Carolina), charging costs of policing to protesters and organizers (Minnesota), allowing businesses to sue individuals protesting them (Michigan, Colorado), and using anti-racketeering laws to seize assets of protesters (Arizona). A bill in Oregon would require public community colleges to expel students convicted of participating in a “violent riot.”

Some articles portray the recent increase in legislation targeting protesting as a result of the large and almost daily demonstrations since the inauguration of Donald Trump; however, others are careful to note that this trend began before Trump took office. Bills in Washington, Minnesota, Michigan, and North Dakota (some of the earliest) were clearly introduced as a direct response to the labor movement to raise the minimum wage, the resistance by Indigenous water protectors at Standing Rock, and demonstrations that erupted in relation to police killings as part of the Black Lives Matter movement.

While this trend of targeting protesters began before Trump, the current conditions are favorable to repression of First Amendment activity. Taken together, Trump’s three executive orders on policing, the large number of state legislatures dominated by Republicans, the pro-policing and pro-business attitude of the current administration, and the constant and growing spontaneous demonstrations protesting Trump all combine to produce an atmosphere in which many powerful interests have a stake in suppressing mass dissent.

Journalists, lawyers, civil liberties experts, and Democratic lawmakers have addressed the problems with these bills: the criminalization of peaceful protests, the chilling of dissent, the fact that penalties for these actions already exist, and the decidedly unconstitutional nature of the proposals. As a result, several bills have already been rejected, including those in Michigan, Virginia, and Arizona. However, many still remain under consideration, and those with an interest in protecting the right to dissent must be vigilant about tracking and vigorously opposing the remainder.

Disturbing Trends

Some disturbing trends are emerging which are related to false assumptions about protesters upon which the legislation is premised. Arizona’s SB1142, for example, was explicitly based on the claim that protesters are paid to be in the streets. The myth of the “paid protester,” which has been codified in police training manuals and the rhetoric of Trump, has long existed. To seasoned activists the idea of paid/professional protesters is mostly seen as a joke, but the politicians introducing these bills are deadly serious.

The myth of paid protesters is almost always tied to the figure of billionaire George Soros, who is regularly accused of being the one issuing these fictive paychecks. While Soros’ Open Society Foundation does offer grants to individuals and organizations to work on specific projects related to civil liberties and criminal justice reform, there is no evidence that he has ever paid protesters to be in the streets. Yet while introducing SB5009, Washington Senator Doug Eriksen specifically named Soros, as well as the Sierra Club, as intended targets of the legislation. Another protest myth is clearly behind one measure in Georgia’s package of pro-policing laws—SB160 creates a new felony offense for protesters who throw “human or animal excreta” at police during demonstrations (a claimed occurrence that has often been cited in policing manuals and yet has no evidence to back it up).

In addition to the alarming trend of legislation punishing people with significant imprisonment and fines based on claims with no supporting evidence, these bills are also attempting to redefine the meaning of “riot” to allow more actions to fall under this category and to link protesting to terrorism. Arizona’s proposed bill would have expanded the state’s racketeering laws to include rioting under organized crime, and redefined rioting to include any acts of property destruction. Washington’s bill re-conceptualizing protests as acts of “economic terrorism” is another example of how non-violent protests are being re-classified as serious threats that deserves severe punishment.

Historical Precedents

The recent surge of legislation targeting protesters and protest organizers is not the first time state legislators have attempted to neutralize and punish effective protests. The Animal Enterprise Terrorism Act (AETA) was proposed in 2003 and passed by Congress in 2006. The initial proposal was followed by a series of similar but far more extreme bills at the state level. AETA ostensibly protects animal enterprises by creating the concept of “eco-terrorists”—animal and environmental activists who successfully cause a financial threat to businesses profiting from animals. This legislation explicitly tied protesting to “terrorism”, and led to the imprisonment of animal rights activists who had done nothing more than administer a website.

After AETA was introduced, the conservative organization known as the American Legislative Exchange Council (ALEC) produced model legislation for the state level, expanding on AETA to further erode Constitutional rights and heavily punish animal rights and environmental protesters. ALEC’s structure and purpose is designed to help corporate representatives craft model bills that are then introduced by conservative lawmakers in multiple state legislatures simultaneously. The organization came to the public’s attention most noticeably five years ago when it was discovered that they were behind the “Stand Your Ground” legislation used to justify the murder of Trayvon Martin.

The NLG analyzed and described valuable lessons learned through the examples of AETA and ALEC. First, it is important to note that none of the proposed legislation was ever passed at the state level. However, it is just as crucial to keep in mind that Republican lawmakers did not stop there. Instead, they moved to an incremental approach that inserted key provisions of the failed bills into other legislation, for example by using specific language in other bills (like ecological terrorism) or including the same penalties for a more limited number of offenses than the original bills. As we watch this new round of anti-protesting bills, we must keep this lesson in mind and consistently fight all attempts to pass unconstitutional and punitive legislation.

Moving Forward

Many of these bills are so obviously unconstitutional, or based on such false premises, that they are unlikely to pass. Indeed, many have already failed. Others have been sent back to committees for revisions to make the bills more palatable to lawmakers and the general public. As we saw from the AETA/ALEC example, we should expect to see parts of these bills introduced elsewhere should they fail in their current form.

The fact that so many similar bills have been introduced—combined with the spate of news articles that do not always highlight that these are proposed bills that have not yet passed—creates an atmosphere of confusion and fear. The knowledge that these bills are being considered in many state legislatures, regardless of their status, is likely to have a chilling effect on dissent. Few people would be as willing to protest if they thought they could easily be arrested, fined, imprisoned, or even killed. The lack of clarity over where bills stand in the legislative process, the likelihood they will pass in their current forms, and the actual consequences if they do is already enough to cast doubts among those who intend to protest.

Civil liberties advocates are clearly questioning which individuals or interest groups are behind this wave of legislation all targeting mass protests and the right to dissent at the same moment. Given its past experience in pushing conservative model legislation, ALEC would be an obvious suspect. While there is no indication that anti-protest legislation is on ALEC’s current agenda, it is worth noting that the kinds of protests being targeted are all in conflict with ALEC’s anti- worker and anti-environmental platform. However, the model legislation strategy introduced and perfected by ALEC is at this point a commonplace and well-absorbed pattern that does not necessarily need formal organization from above. It could be enough for lawmakers to simply copy or adapt legislation already introduced in other states. Another possible organizing force behind such legislation are police unions, and the coordinated efforts of law enforcement as exemplified in the Police Executive Research Forum. Given the pro-policing approach of the Trump administration, it would be unsurprising if law enforcement organizations prioritized criminalizing protest activity.

As civil and human rights advocates face the challenges of the new administration, it is imperative to not be demoralized or frightened into ceding the streets in the face of legislative attempts to curb mass protest. We must instead continue to organize and to keep a close watch on these bills as they emerge in state and federal legislatures, and to push back at every level. Public outcry and widespread criticism against the Arizona bill, for example, led the Republican speaker of the house to drop the legislation. Together we have the power to challenge and stop these bills before they are passed into law. Now more than ever, we must protect our right to dissent publicly and to disrupt business as usual. At very least, these bills indicate that protesting has certainly become a threat again.

Winter Is Not Coming. We Need Winter.

By Jeremy Deaton, ThinkProgress

04 March 17

2017’s early spring is bad news for the birds and the bees (and the flowers and the trees).

hicago has seen nary a snowflake since before Christmas?—?a record in a city that averages 40 inches of snow in the winter. In Washington, D.C., the famous cherry blossoms are set to bloom two weeks ahead of schedule, marking the end of an uncommonly warm winter and the early arrival of spring.

In normally cold regions, the record-setting heat— and the opportunity to wear shorts and drink iced tea in February—might seem like a blessing. But for the ecosystems we depend upon, the shortened winter threatens turmoil.

In nature, timing is everything. In a spring, flowers lend their nectar to bees, and bees pollinate those flowers. When flowers bloom too soon, however, they risk losing their petals and nectar before bees show up. Fewer bees mean less pollination, and so forth.

But if both species resurface at the onset of spring, why would they fall out of sync? The answer is that they respond to different cues. Some plants, like Washington’s cherry trees, bloom after experiencing several warms days in a row. Others respond to sunlight, blossoming only after days grow longer. Pollinators?—?such as birds, bees, bats, and butterflies—have evolved to take advantage of these subtle, seasonal cues.

In a normal year, these cues more or less line up as anticipated, leading the birds and the bees to discharge their vernal duties at roughly the appropriate time. But climate change is blurring the line between winter and spring?—?a phenomenon scientists call season creep?—?and many species of both flora and fauna are struggling to adapt.

Even when plants and pollinators are in sync, season creep can thwart the growth of vegetation. Seeds that take hold during a balmy stretch in February may perish in a cold snap come March. Full-grown plants sprout leaves, flowers or fruit that wilt when chilly weather returns. Experts describe a warm winter spell that spurs flora and fauna to reemerge ahead of schedule as a false spring.

A false spring can also be extremely costly to farmers and, by extension, consumers. In 2012, an especially warm winter followed by freezing temperatures ravaged fruit trees in Michigan, costing growers half a billion dollars. The problem is likely to get worse in the years to come. A 2015 study found that climate change will produce more false springs in the Midwest and elsewhere, imperiling fruit crops.

Even an the absence of a late-season frost, a warm winter can wreak havoc on agriculture. Sugar maples, for example, only produce sap in cold weather. Rising temperatures have stunted syrup production.

Warmer winters do, however, tend to make people pay closer attention to the overall trend of anthropogenic climate change. A Gallup poll conducted at the end of last winter?—?the warmest on record in the United States?—?showed an increase in the number of Americans who believed the effects of climate change had already begun.

Granted, not everyone is equally persuaded by personal experience. Research suggests that those who are already concerned about climate change are more likely to perceive exceptionally warm weather as a deviation from the norm.

This year’s unusually mild winter has prompted many Americans to consider the implications of climate change. Chicago meteorologist Tom Skilling attributed the city’s snowless winter to global warming. In nearby St. Paul, Minnesota, civic leaders alarmed by the unusually warm weather are working on a climate action plan. Anne Hunt, the city’s environmental policy director, told the St. Paul Pioneer Press, “It’s not supposed to be 65 degrees in February, or rain on Christmas.”

By contrast, the mild winter has done little to sway federal policymakers. From the Oval Office, President Trump has proposed gutting federal climate programs and debated pulling out of the Paris Climate Agreement.

From the Lincoln Bedroom, he can see the cherry blossoms just beginning to emerge.