The year of the pandemic was, against all odds, a year of unprecedented civic activism. We may have been confined to our homes and Zoom screens, hunkered down with small pods of relatives, but we were also in the streets, at the ballot boxes, and engaged as citizens like never before. All summer, hundreds of thousands left the security of their homes to join demonstrations across the country to protest the killing of George Floyd. And in November 2020, more Americans voted than ever before in a presidential election, as two out of three eligible voters cast a ballot.
One might see this as cause for celebration, as democracy at work. The small-r republicanism that was so influential among the founders emphasized civic virtue and political participation, and we certainly had plenty of that in 2020.
But if you are a capital-R Republican, it seems, such activism is to be feared, not praised. The Republican Party has reacted not by celebrating the involvement of citizens in matters of their own governance but by looking for ways to deter such conduct. Voter suppression is at the top of the party’s agenda. As has been widely reported, Georgia and Florida led the charge, enacting laws that reduce opportunities to vote, with the predictable and intended effect of reducing the participation of poor and minority communities.
However, a second front in the war on democracy has received less attention. Since the BLM protests began in May 2020, 33 state legislatures have introduced at least 100 bills designed to dissuade people even from participating in protests. These bills, several of which have already become law, seek to increase the costs of protesting in multiple ways. Some, including laws passed in Oklahoma and Iowa, immunize drivers who hit protesters from any liability. A law recently enacted in Arkansas imposes a mandatory 30-day sentence on anyone convicted of “rioting,” loosely defined as “tumultuous” conduct with two or more others that risks “causing public alarm” or “disrupting the performance of a governmental function.” One can easily imagine officers using such open-ended provisions to punish those who harshly criticize police abuse.
Other bills, including bills pending in Ohio and Arizona, target conduct that is already illegal, such as blocking traffic, but increase the penalties, transforming misdemeanors into felonies if they occur in the course of a “disorderly” protest. And some bills, including one passed in Florida that the ACLU and NAACP Legal Defense Fund recently challenged, call for mandatory detention of persons arrested for violating protest laws, even in the absence of evidence that they pose any danger to the community or risk of flight. Still others would render those convicted of “disorderly assembly” (and what assembly is not disorderly?) ineligible for student loans or other government benefits. Some would impose 15-year sentences for defacing public monuments.
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If the states’ concern is to deter violence, such heavy-handed tactics are entirely unnecessary. State laws already make property damage, obstruction of traffic, and even “disorderly conduct” a crime, so police officers have the tools they need to maintain order. But that’s not the real intent here. Rather, these laws are transparently designed to deter protest because Republicans don’t like the messages they are hearing—just as the voter suppression efforts are motivated by the fact that the Republicans don’t like the choices citizens are making at the polls.
We’ve seen this playbook before. In the wake of the anti-war and police abuse protests of the late 1960s, Congress enacted the Anti-Riot Act, infamously used to prosecute the Chicago 7 for their part in protests at the Democratic National Convention in 1968. That law, which makes it a crime to “promote” or “encourage” a “riot,” without defining these terms, is almost certainly unconstitutional as written. In 1969, the Supreme Court ruled in Brandenburg v. Ohio that the First Amendment protects advocacy of illegal action unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The Anti-Riot Act has rarely been used since the Chicago 7 trial, although several prosecutors dusted it off to charge Black Lives Matter protesters in the summer of 2020, only to drop the charges when challenged.
And in 2020, a federal appeals court in Texas ruled that a Black Lives Matter organizer, DeRay Mckesson, could be sued by a police officer for injuries the officer sustained when an unknown person threw a rock at the police officer during a protest Mckesson allegedly helped lead. Mckesson was not charged with ordering, directing, endorsing, or even knowing about the unidentified rock-thrower’s act. But the court reasoned that because the protest had blocked the street, it was illegal, and Mckesson could be sued for any foreseeable injuries that stemmed from the protest. It was foreseeable, the court reasoned, that the police would get involved to enforce the law barring traffic obstruction, and that violence would ensue. On that elastic theory, anyone who organizes a protest could be held liable for any damage to property or person that anyone in the protest commits, without any showing that the individual actually engaged in—or even encouraged—the behavior that led to injuries.
Mckesson appealed his case to the US Supreme Court. (As national legal director of the ACLU, I am cocounsel for Mckesson). In November, the Supreme Court vacated the lower court’s decision, and sent the case back, directing the federal court to ask the Louisiana Supreme Court whether its state laws even authorize such a novel theory of liability. We await a decision.
As Mckesson’s case and the Chicago 7 trial illustrate, laws imposing liability for injuries that occur during protests are easily abused to target those whose views the authorities dislike. Those who actually engage in violence or property damage, whether in the course of protest or not, should of course be held liable for their wrongdoing. But the laws on the books are already more than sufficient to address that concern. The new slate of anti-protest bills are designed not so much to counter violence as to suppress dissent.
