States Are Restricting Protests and Criminalizing Dissent

Spencer Platt, art by Liz Coulbourn

<cite class="credit">Tina Tona</cite>
Tina Tona

Since 2017, 21 states across the country have passed new laws that restrict protests — nearly 50 in total — with dozens more being introduced annually.

Most of these new laws increase criminal penalties for conduct, like interfering with traffic, involved in some kinds of protests. Under laws passed in states such as Arkansas, Iowa, and Tennessee, protesters can spend up to a year in jail for “obstructing” public streets or sidewalks, even though these are traditional venues for First Amendment-related activities. After protests against the Keystone XL Pipeline, 14 states dramatically increased penalties for trespassing, which would usually amount to a petty offense, if protesters enter lands with pipelines or pipeline construction sites.

In many cases, these laws go further than punishing individual protesters to include the people and organizations that support them, putting organizers and community groups at risk. Under a recent law in Oklahoma, an organization that “conspires” with people to hold a protest can face felony penalties if the protest is deemed to be an “unlawful assembly” — which state law defines vaguely enough to include a three-person protest that “disturbs the public peace.”

State actions to suppress protests foreclose a central way we communicate collectively about what we want our world to look like, how we want our planet to be treated, and our societies governed. Silencing protests means that critical voices cannot be heard on fundamental issues that affect us, such as reproductive rights, racial justice, LGBTQ+ rights, the climate crisis, and more.

The First Amendment of the Constitution protects our right to peacefully assemble in order “to petition the Government for a redress of grievances.” These avenues of civic engagement are particularly important for young people, who are often at the forefront of social justice movements.

In 2021, in the wake of nationwide racial justice protests, Florida adopted a sweeping law that established new crimes that could ensnare peaceful demonstrators and new protections for people who injure them. The law, which Black-led organizers challenged in a lawsuit soon after its passage, codified an expansive definition of “riot” that could apply to a group of three people whose behavior is deemed to create a risk of property damage — a definition so broad that a federal judge blocked it as unconstitutionally vague.

The Florida law established other ambiguously worded crimes and can be enforced with discretion to target certain groups and causes. Under the law, if you participate in a protest that authorities consider “threatening to use imminent force” to try to change someone’s mind, you could spend up to a year in jail for “mob intimidation.”

Codifying additional crimes related to protest activity also expands law enforcement’s authority to arrest protesters, creating more situations where protesters may face police violence.

At Florida’s Capitol, authorities enacted new rules in 2023 requiring protesters to get approval from a state agency and show that the purpose of their protest aligns with that agency before they can demonstrate at the statehouse. Under the same rules, Florida's Capitol police were given sweeping new powers to remove protesters from the statehouse and its grounds.

Legislation to criminalize common protest tactics, including hanging banners on public property and projecting images onto a building without its owner’s consent, also passed last year.

This year, after rallies protesting Israel’s continued military assault on Gaza, Miami Beach adopted new ordinances that prohibit protesters from blocking cars or pedestrians, including any conduct that would “require another person to take evasive action to avoid physical contact.” Orlando adopted a similar ordinance in January.

Rather than surrender in the face of new laws and restrictions, Floridians have continued to turn out in record numbers to protest these measures and other controversial initiatives. Hundreds of students across Florida have organized walkouts to demonstrate against legislative attacks on their transgender classmates and the state’s ahistorical new Black history curriculum. Last spring, dozens of Dream Defenders staged a sit-in inside the lobby of Florida governor Ron DeSantis’s office to protest his extremist agenda; 14 people were arrested. Last summer, immigrant rights groups led demonstrations and strikes across the state to protest Florida's draconian new immigration law.

Florida’s elected officials have been particularly aggressive in squashing dissent and pushing their anti-democratic agenda, but what is happening in that state represents a national trend of retaliation against people who use their voice, especially people of color.

At the federal level, Congress has repeatedly proposed bills to punish protesters. In 2020, 20 members of the House tried to strip federal unemployment benefits from anyone who committed a protest-related offense — including minor misdemeanors — on federal property. This spring lawmakers in the House and Senate introduced a spate of bills targeting campus protesters, including one proposal to bar student loan forgiveness for someone convicted of any offense related to a campus protest. Fortunately, no national anti-protest laws have passed in recent years, a rare upside to the partisan gridlock on Capitol Hill.

There is a long history in the US of lawmakers attempting to stifle social justice protests and community calls for change by tamping down on First Amendment freedoms. In fact, one of Florida’s early “anti-riot” laws, adopted in 1967, was a direct response to protests and calls for justice from Tampa’s Black community after police shot and killed an unarmed Black 19-year-old.

Today, as in the past, these new restrictions seem to be lawmakers’ go-to response to movements that threaten the status quo. Sixty bills have been introduced to target fossil fuel protesters by ratcheting up penalties for trespassing near pipelines. After the murder of George Floyd and the subsequent uprising, lawmakers introduced more than 100 bills to restrict protests, often explicitly citing racial justice demonstrations.

Lawmakers are also supported behind the scenes by corporate lobbyists and other special interests. As The Guardian reported, groups like the conservative American Legislative Exchange Council (ALEC) have produced “model bills” that make it easy for legislators to copy and paste anti-protest bills from one state to the next.

In addition to new laws, authorities are demonstrating a new willingness to deploy existing draconian restrictions against protesters. In Georgia, authorities have arrested protesters who oppose the state’s new police training facility, nicknamed “Cop City” by activists, and charged them with “domestic terrorism” and violating the state’s law against racketeering — felony offenses that can mean many decades in prison.

There are multiple examples of states moving to punish protest activity with felony charges, which can also make it harder to vote. All but two states and Washington, DC, bar people with felony convictions from voting while serving their sentence. And even after prison and parole, some states make it extremely difficult to restore one’s right to vote if a person has a felony conviction.

In Tennessee, for instance, individuals have to either have a court order or pardon from the governor; according to a recent rule, they also have to restore their gun rights before they can be allowed to vote again. In Florida, a law enacted in 2019 allows people with felony convictions to be re-enfranchised only after they have paid off all legal financial obligations, including fines, fees, and court costs — an amount that can, in practice, be impossible to ascertain and difficult to cover. And both of these states have recently passed laws that create new felony offenses for protest activity.

In this way officials are not only silencing voices in the street but also in the voting booth. The trend is even more concerning given our country’s history of racialized policing of protests. Protesters of color have historically faced greater law enforcement presence and more aggressive policing than white protesters. That was the case in 2020, when police were more than twice as likely to disperse and use force against racial justice protesters compared with right-wing, predominantly white protesters, according to a FiveThirtyEight analysis. The higher likelihood of charges being brought against protesters of color means racial disparities in felony convictions and disenfranchisement rates.

There are currently over 30 bills pending in Congress and statehouses across the country. Twelve of these make it a serious crime to block traffic during a protest, a tactic often employed at recent pro-Palestine demonstrations. A lawmaker in New York wants to change state law so that such protesters can be charged with domestic terrorism.

This suppression may escalate as we near contentious elections in November. Former president Trump has said there will be a “bloodbath” if he loses. If he wins, he reportedly plans to invoke the Insurrection Act and deploy the military to put down any opposition protests, per Politico.

The manifold attacks on our right to protest are an assault on democratic participation, restricting the collective right to raise our voices and even our individual right to cast a ballot. If we want to ensure that lawmakers listen and address our concerns, it’s important to both exercise our right to protest and fight to protect it.

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