Civil protest is a crucial tenet of any free democracy – and in the US it’s protected by the Constitution’s first amendment. But a wave of new anti-protest laws may infringe on this hard-won constitutional right – one that could scarcely be more deeply rooted in the American political psyche.
On December 16, 1773, a band of protesters boarded the East India Company’s ship in Boston and, in defiance of the Tea Act tax, tossed the entire shipment of tea into the harbour. Now known as the Boston Tea Party, this illegal act of civil disobedience helped spark the American Revolution. It remains one of the US’s core patriotic narratives, the embodiment of the idea that freedom of protest and dissent is a central principle of democracy.
This right has been enshrined in American democratic dogma since the Bill of Rights was introduced in the Constitution in 1789. In fact, the Founding Fathers believed the right to protest was so important that they addressed it in the first amendment to the Constitution:
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 right is reinforced by the 14th amendment, which prohibits states from violating the first amendment. Despite this important constitutional protection, lawmakers across the states have introduced legislation that threatens to infringe on citizens’ first amendment rights.
Several states have seen legislation passed or bills proposed that would seriously curtail protest activity. In North Dakota and Tennessee, bills have been put forward that would make it legal for motorists to run over and kill protesters so long as it isn’t their specific intent. In Iowa, a bill proposes that protesters stopping traffic will be charged with a felony that carries up to five years in prison and a $7,500 fine. Indiana lawmakers have proposed a bill that would allow police to use any force necessary to remove protesters from blocking traffic.
Minnesota legislators put forward a law that would allow the state to sue convicted protesters for the cost of policing and providing security at demonstrations. In Washington state, a bill would label protests as “economic terrorism”.
Virginia legislators are also considering a bill that would increase the penalties for failing to disperse from a protest, fining protesters up to $2,500 and serving as much as a year in jail. And, in North Carolina, a lawmaker has proposed a bill making it a criminal offence for a protester to “threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties”.
Federally, the Trump administration is abundantly clear about where it stands on anti-government protest. The new whitehouse.gov website features a page headed: “Standing Up For Our Law Enforcement Community”, which puts it bluntly: “Our job is not to make life more comfortable for the rioter, the looter, or the violent disrupter.”
See you in court
In an age of political turmoil, highlighted by the election of a presidential candidate who lost the popular vote by nearly 3m, the right to protest is surely as critical as ever – and yet it is facing serious challenges.
True, it is not in itself unconstitutional for state or federal government to impose restrictions on protest activity, including requiring permits for peaceable assembly and prohibiting protesters from blocking traffic and other threats to public safety. Similarly, while many forms of protest are protected on public property, civil disobedience on private property is not a protected right. Indeed, restrictions on protest have existed for quite some time.
What’s changing are the penalties for violating protest restrictions, which are in many cases far greater than they have been in the past. The question, then, is whether these laws and the penalties they impose will actually work.
After all, when direct action is used to protest something, breaking the law is often part of the point. New legislative crackdowns are unlikely to deter movements such as #BlackLivesMatter and #NoDAPL, whose members are very much aware that even Gandhi broke laws to protest injustice – a concept known as satyagraha or “truth force” in Gandhian non-violence philosophy.
So do the laws now advancing through state legislatures really pose an existential threat to American democracy? Many protesters and Trump opponents might think so – but on balance, if protesters end up taking their cases to court, their first amendment rights will probably be upheld. While some of the new laws may be found constitutional in protection of public safety – as the saying goes: “your rights end where mine begin” – others stand a good chance of being struck down for violating protesters’ rights to freedom of peaceable assembly.
So while the conservative lawmakers advancing these bills may be able to get them through state houses – and while the White House may apparently share their desire to curb protesters’ freedoms – they might yet be denied their wishes by the Constitution’s most basic principles.
Laura Graham, Assistant Professor of Sociology, Trinity College Dublin