Perspective: New state anti-protest laws, if upheld, threaten to mute our First Amendment freedoms

By Gene Policinski, Freedom Forum Senior Fellow for the First Amendment

A Year of Protest

Through public protests, rallies and marches since the May 2020 death of George Floyd, we have seen a revived, frank — and yes, at times, confrontational — national conversation over racial injustice, policing and other issues.

Most events were peaceful and many marked a continuation of the Black Lives Matter movement of recent years, calling society to account over the ongoing tragedy of the deaths of Black men and women at the hands of police.

Demonstrations on other critical issues have also occurred, for example, in opposition to COVID-19 mandates, advocating action on climate change and in reaction to election results. And then there was the Jan. 6 insurrectionist assault on the U.S. Capitol — a violent act which, it should be noted, was not protected by the First Amendment, despite claims to the contrary.

State Lawmakers Propose Protest Limits

State lawmakers’ response to the public outcries: “State policymakers have introduced at least 100 proposals since June 2020 to reduce the scope of Americans’ right to protest,” says a new report from PEN America.

In Florida and several other states, a person is now protected from civil lawsuits for driving into a group of protestors blocking streets — even if someone is killed. Florida’s new law also makes simply blocking that street, a common form of public protest throughout American history, a felony, which could bring a five-year prison term.

More: Supreme Court Halts Ruling Aimed at Stifling the Right to Protest

Other proposed or adopted laws would allow authorities to jail arrested protesters until a first court appearance by removing the option for posting bail. Many impose new, unrelated and draconian penalties for violations, such as loss of unemployment benefits, state aid to dependent children and even the ability to run for public office.

Sponsors of the new bills in various legislatures often fly the flag of preventing violence, despite the reality that most public protests nationwide are peaceful and that laws already on the books are powerful tools to discourage and punish illegal conduct.

“Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.” – Frederick Douglass

Protest is Designed to Create Discomfort

Lest we forget, public protest is inherently a “safety valve” for social pressures. “Through exercise of their First Amendment rights of speech, assembly, association and petition, rather than through riot or revolution, [protesters] sought to bring about political, social and economic change,” Justice John Paul Stevens wrote in a 1982 decision involving protest and its aftereffects, NAACP v. Claiborne Hardware Co.

The First Amendment does not provide shelter for riots or violence — period. But “a function of free speech under our system of government is to invite dispute,” Justice William O. Douglas wrote in 1949, in Terminiello v. Chicago, and speech “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.”

Given the likelihood of constitutional challenges to the harshest aspects of the various proposals, it is not difficult to see immediate political gain as an underlying motivation for backing such laws. Politicians supporting new protest limits may exploit momentary fears of occasional disruption or even rarer violence to drive partisan support for quashing opposing views and getting such laws passed.

But on all sides of the political spectrum, we will have to live with those laws well beyond such moments and endure the limitations on protest rights no matter our issues or stances.

That’s a shameful misuse of genuine concerns about both social justice and public safety, and a betrayal of the First Amendment values prized by our nation’s founders.

Why We Need Protest

Americans have long used their rights of public protest to express opposition or, in causing discomfort, prompt positive social change. In 1857, social reformer and statesman Frederick Douglass noted in a speech against slavery that “the whole history of the progress of human liberty shows that all concessions … have been born of earnest struggle … Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.”

Again and again, our nation has seen the “thunder and lightning” of colliding views on what’s best for our nation and heard the “awful roar” of protest on issues from women’s rights to civil rights to LBGTQ rights, from anti-tax to anti-COVID-19 mask mandates, on both sides of abortion law issues and more.

There is no doubt we are a better nation for all that intentional tumult — and that we will be a lesser nation if attempts to stifle our efforts to “petition for redress of grievances” ultimately mute our First Amendment freedoms of speech, assembly and petition.

You can reach Gene Policinski at [email protected].

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