This column expresses the views of Gene Policinski, senior fellow for the First Amendment, Freedom Forum.
When do our First Amendment rights become “wrongs?”
Well, when it comes to exercising your rights of free speech, assembly and petition in Tennessee, be careful. Setting up a up a tent for an overnight stay during a protest could land you in prison for up to six years.
A new law signed quietly into effect on Nov. 5 by Gov. Bill Lee changes the “crime” of overnight camping on state property without a permit — aimed at deterring protesters who have done that — from a misdemeanor to the much more serious felony. It also provides for stricter penalties and minimum jail terms for such clear threats to the republic as drawing in chalk on state property or interrupting legislators or local officials who are in a meeting.
In recent years, police have resorted to “sweeps” during demonstrations that operate on the theory of “arrest all and sort them out later,” sometimes taking into custody non-protesters simply walking to lunch or shopping. The Volunteer State’s new anti-protest law — advocates call it “criminal justice reform” — requires a magistrate’s intervention to gain early release for anyone sooner than a mandatory 12-hour minimum stay behind bars.
A move in states to silence public protest began about a decade ago, around the time of the “Occupy” movement. The latest Tennessee statute was sparked by demonstrators who set up camp in Nashville’s War Memorial Plaza for nearly two months this year while seeking removal of a bust of Confederate Gen. Nathan Bedford Forrest, first leader the Ku Klux Klan, from the state Capitol building.
By some reports, as many as 40 states have considered or adopted direct or backdoor attempts modeled on a draft law prepared by a conservative alliance of legislators and corporations to restrain public protest. Some proposals include providing legal immunity for motorists who — essentially absent a declaration of intent to injure or kill — strike demonstrators standing in a public thoroughfare.
Some proposed laws have been deemed outright to be unconstitutional for targeting certain groups or simply for being too broad or too vague. But government officials can enact lawful restrictions on “time, place and manner” in how we protest. If upheld by the courts, such laws can reasonably limit the hours and locations of public demonstrations or individual protests, the size of signs or the number of people who can gather in public spaces or on sidewalks.
Such laws nonetheless can chill free speech in ways seemingly distant from the 45 words of the First Amendment. Being convicted of a felony also may mean forfeiting the rights to vote, carry a gun or obtain a professional license and negatively can affect your ability to get a job or obtain a mortgage.
In Florida, Gov. Ron DeSantis recently proposed not only felony charges on protestors, but also penalties on cities and towns deemed not to be taking appropriate law and order measures in response to demonstrations. If enacted – and if the provisions survive court challenge – Florida would have the harshest anti-protest laws in the nation.
DeSantis’ proposal, to be considered when the legislature meets in March, includes felony charges for obstructing traffic during an “unauthorized” protest or for toppling a monument; an initial “no bail” provision for those arrested during a demonstration, and a mandatory six-month jail term for anyone who strikes a law enforcement officer during a protest. Anyone who organizes or simply donates money to protesters would risk penalties under the state’s racketeering laws.
Tennessee’s chapter of the American Civil Liberties Union said that the new law “requiring 12-hour holds upon arrest, putting in place mandatory minimums and enhancing petty crimes to felony-level offenses … will send a message loud and clear that Tennessee is no place to exercise your constitutional rights if state or local government entities disagree with you.” An op-ed writer in the Memphis Commercial Appeal noted in August about the then-proposal that “In George Orwell’s novel ‘1984,’ the state transforms all manner of innocuous activities into the most serious crimes … because in totalitarian societies, any deviation from even the smallest part of the system is perceived as a threat to the system as a whole.”
U.S. Supreme Court decisions stretching back more than 140 years have upheld our rights to assemble and petition. In 1937, the US. Supreme Court ruled unanimously in De Jonge v. Oregon that that the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be made a crime.” And in 1939 the court held in Hague v. Committee for Industrial Organization that streets and parks “ … have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.”
Ten years later, Justice William O. Douglas, in Terminiello v. City of Chicago, wrote that free speech is intended to “ … invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger … It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”
More recent court rulings echo Douglas in acknowledgement that protest is inherently disruptive, may well be offensive or cause anguish to some, but is protected because of a need for “robust” public discussion around public policy and practices.
Yes, democracy is messy — and public demonstrations at times may well inconvenience, insult or infuriate you and me. But legislative acts designed to restrain, remove or chill our rights to protest are not just unconstitutional, but also unpatriotic.
As James Madison, author of the First Amendment, once observed about the new nation: “The censorial power is in the people over the government, and not in the government over the people.”
Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.