New protest bills: Stamping out 'economic terrorism' or chilling free expression?

After watching protests erupt around the country against police shootings, tougher immigration laws, and the Trump administration, Arizona state Sen. John Kavanagh reportedly came to a conclusion: “This stuff is all planned” by “ideologues” and “anarchists,” he told the Arizona Capitol Times.

In response, Senator Kavanagh sponsored a bill patterned on the kind of racketeering laws usually reserved for the Mafia: Anyone involved in a protest could be guilty of a felony if things get out of control, “whether or not such person knows [the] identity” of the person actually breaking a law.

Senate Republicans in Arizona voted in favor of Kavanagh’s proposal, joining conservative lawmakers in some 18 states in moving forward tough new bills intended to curb what they see as lawlessness during a new age of demonstrations and street mobilization.

For their part, opponents of those bills don’t see efforts to keep the peace – they see police state tactics. Civil rights activists say such bills violate the First Amendment and have more to do with chilling free expression than law and order, given that several of the proposals could open up peaceful protesters to serious criminal liability.  

“I don’t think it’s a coincidence that we are seeing [antiprotest bills] filed at a time when more and more Americans are taking to the streets to practice their constitutional right,” says Mike Meno, an American Civil Liberties Union staffer in Raleigh, N.C.

The new bills come during a time of large-scale protests not seen since the civil rights era, as well as an emerging strategy to use economic pressure, through boycotts or more immediate actions, to force change. At a time of extreme political polarization – when half of Americans say they are “afraid” of the other side – Republican-led statehouses are probing the boundaries of what constitutes constitutionally-protected protest versus what makes a mob.

A strong-arm response to protesters pushing new bounds “isn’t new … but I’ve also never seen anything quite like” this spate of legislation, says Doug McAdam, a Stanford University sociologist and co-author of a forthcoming book “The Origins of Our Fractured Society.” “It’s more evidence that we are really in a different period. The fact is, we haven’t really seen this kind of sustained political tension and popular mobilization since the early 1970s. As we speak, the dynamics of social movements are being transformed or significantly altered.”

The wave of new demonstration-related bills have come in response to pipeline protests in North Dakota, train blockades in Washington State, and interstates crawling to a standstill in places such as Baltimore and Charlotte, N.C. Meanwhile, some Republican lawmakers facing stiff opposition to the repeal of Affordable Care Act in their home districts have begged off in-person town halls, citing as did Rep. Louie Gohmert (R) of Texas, “the threat of violence” from outside agitators.

“I think these bills are indicative of the fact that, particularly on the left, you’ve seen the willingness to use protests to impede economic freedom,” says Andrew Taylor, a political scientist at North Carolina State University in Raleigh. Given the corporate boycotts against the so-called “bathroom law” in North Carolina, for example, “there’s a sense that the left is trying to coerce people into doing things by threatening their economic situation, and I think [these bills] are an outgrowth of that.”

'Scared' of the other political party

The tension comes as Pew finds that about half of Democrats and half of Republicans are “afraid” of the other side. Among highly politically active Americans, just over 6 in 10 say the other side scares them, a recent Pew survey reports.

Under that mantle of distrust, many of the so-called “economic terrorism” bills are built around a similar idea: That much of the dissent at protests and town halls is not only fake, but paid – intended not to debate but disrupt. The Pulitzer Prize-winning Politifact says there is no evidence that protesters are being paid (just as there wasn’t when Democrats made similar claims about the tea party).

The vast majority of those involved, political scientists say, are everyday Americans invoking their constitutional right to free assembly.

The impulse to paint protesters as stooges “goes back to the antiwar movement where politicians railed against Communist plants trying to undermine democracy,” says Professor McAdam.” “And it’s the same thing as the left arguing in the wake of the tea party that it was AstroTurf, not real [grass roots]. There might be an exception here or there, but all of these are legitimate, popular forms of mobilization.”

'Economic terrorism'

Nevertheless, Minnesota lawmakers have proposed a bill that would allow authorities to sue protesters for costs related to policing a protest. An “economic terrorism” bill in North Carolina would make blocking a street, currently a misdemeanor, a felony punishable by up to 25 months in prison.

Other bills would ban the use of masks and seize assets of those whose protests later turn violent.

After filing an “economic terrorism” bill late last year, state Sen. Doug Ericksen of Washington State pointed to antifracking protests in Olympia where groups have blocked trains by setting up camps on tracks as the impetus for a bill.

“I completely support your First Amendment right to protest,” Senator Ericksen told reporters. But “you do not have the First Amendment right to block a train.”

Bills face strong headwinds

The problem for his bill is that he’s right: It’s already against the law to block streets or rail tracks. In fact, dozens of demonstrators have been arrested in recent weeks on misdemeanor trespass charges for blocking freight and passenger trains in Vancouver and Bellingham, Wash. Moreover, it’s illegal everywhere in the US to start a riot.

The bills are facing strong headwinds. If their penalties are redundant, the argument goes, why pass them unless the attempt is to chill free speech? Citing concerns about perceptions of undermining First Amendment rights, Arizona's Republican House speaker refused to hear Kavanagh's bill, effectively killing it.

But there are some forms of protest that “should be chilled,” according to University of Tennessee law professor Glenn Reynolds. Ordinarily a promoter of free speech and expression on his libertarian-leaning Instapundit blog, found himself on the other side of the issue after the police shooting of Keith Scott in Charlotte, N.C.

During the second night of protests, Reynolds watched TV coverage of angry people spilling onto Interstate 85 and Interstate 277, stopping traffic, looting, and, in one case, attacking a driver. After documenting those events in a series of tweets, Reynolds launched three words:  “Run them down.” He quickly and publicly apologized for seeming to advocate the targeting of protesters, which he says he did not.

In an email to the Monitor, Reynolds notes that his tweet “referred to legitimate self-defense against violent rioters who were smashing windshields, looting trucks, and beating people unconscious,” adding that “violent assaults on motorists are never ‘legitimate dissent' ... [and] should be chilled.” The fact is, he writes, “even nonviolent blocking of roads is quite dangerous, drastically raising the risk that protesters will be accidentally run over, or that stopped motorists will be rear-ended, as well as the danger of impeding emergency services, ambulances, etc., which has happened already in some cases.”

A handful of states have now proposed relieving motorists of liability should they hurt someone while trying to escape from a highway protest.

What’s also fueling concerns among conservatives is that social media mobilization has enabled protesters to get out ahead of authorities as protests develop, sometimes leaving police anxious and unprepared. That dynamic only heightens tensions.

“Authorities are feeling caught off guard by the increased dexterity that comes with social media,” says Michael Heaney, a political sociologist at the University of Michigan in Ann Arbor. He notes, however, that social media organization also can act as a balm, creating “a kind of organization to what might otherwise be a riot.”

Courts may weigh in

If any of the laws pass, federal courts will take a hard look at whether they infringe First Amendment rights.

The Supreme Court has, in the name of public safety, afforded authorities leeway to crack down on protests where life and property may be affected. But the high court has also acknowledged the importance of streets to the conduct of democracy, noting in one landmark case that assembly and discussion in “streets and parks” is “part of the privileges, immunities, rights, and liberties of citizens.”

Lower courts “won’t stand” for throwing legitimate protesters in jail or forcing them to pay for security, says Professor Heaney.

“These cases get heard by judges who deal with real criminals. Those judges, whether liberal or conservative, know the difference between someone who is trying to make the world a better place and who is not.”