By: Ben Smart

The wake of George Floyd’s murder created two waves. The first was the protests that broke across the nation, fighting against police brutality and the racism not yet purged from our system. The second wave was the legislation hoping to crush these protests. Since that day, there have been 110 anti-protest laws and executive orders proposed in 37 states and the U.S. Congress. Of these, 53 are still pending, 44 have been defeated, and 13 have been enacted, two with improvements. The most common method to attack protests is expanding the definition and punishments for rioting. States have, however, become creative in their attempts to stop protestors. The two techniques presented here are intended to threaten protestors, either economically or physically.

The first strategy is to make protests expensive. 15 Bills are pending and 8 enacted that impose various civil, criminal, permit, or policing costs on protestors. First, before a protest starts, a newly enacted Alabama law would require that organizers pay seemingly open-ended “permit costs.” These may include the cost of cleanup, the cost of the use of law enforcement, as well as “any other actual administrative cost.” These restrictions will limit spontaneous protests if they are too large (as determined by the municipality) and requiring a permit. After a protest, individuals convicted of rioting related offenses could even be held liable for damages they did not create (HB 2, SB 3). An Ohio law would allow people convicted of misdemeanors to pay for police response to an “aggravated riot,” regardless if such a riot actually occurred. There are also laws pending that would strip unemployment or other aid from individuals convicted of protest related crimes, including one pending federally. Multiple laws will also charge organizations related to activities deemed riots with criminal or civil penalties, awarding up to treble damages. The purpose of these laws is clear: intimidation. Peaceful protestors may be required to pay damages for crimes they were not involved in, and for offenses they were not convicted of. 

The second method to deter protestors is to allow for violence against them. There are 8 bills pending and 3 enacted that would grant drivers immunity for running into protestors. Driver immunity laws have been instigated after individuals have been filmed driving through crowds of protestors, such as in this Oklahoma case. The driver here was not charged, but Oklahoma still decided that it ought to pass a law granting drivers conditional immunity for hitting protestors. These laws generally do impose some sort of care requirement on the driver, and do not apply to protestors with permits. However, this still allows for violence against protestors who lack the approval of the government. There is also 1 bill enacted and 1 pending that would allow for defensive violence against protestors. The enacted bill in Florida creates a new affirmative defense to wrongful death or injury claims, allowing for immunity if the victim was “acting in furtherance of a riot.” There is no problem that these laws solve. Rather they have been designed to send a message: protestors are in danger.  

The First Amendment protects peaceful assembly and cannot be defeated by a barrage of state condoned violence or sanctions. While far more bills have been defeated than enacted, we are still in the middle of a storm of legislation, and we cannot forget how important the right under attack is.

Ben Smart received a B.A. in Philosophy and Sociology from The University of Oklahoma, and is currently a 2L at Sandra Day O’Connor College of Law. He is particularly focused on justice in criminal and international law, and hopes be an ethical prosecutor after graduation. When not working, he enjoys messing with his dog and throwing a line in water, hoping a fish will pity him enough to bite.