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Wave Of 'Anti-Protest' Bills Could Threaten First Amendment

Originally published on April 30, 2021 4:38 pm
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MARY LOUISE KELLY, HOST:

We're going to check in now on the record number of anti-protest bills that Republicans have introduced this year. Several have already become law. In Florida, for example, Governor Ron DeSantis signed what he calls anti-riot legislation. It includes new penalties for protesters and for local governments that decrease law enforcement budgets. In Oklahoma, drivers who unintentionally hit protesters now have immunity. Now these bills and others follow months of large scale, mostly peaceful demonstrations against police brutality. And these bills are raising red flags among First Amendment experts. Joining me now is Nick Robinson. He is a senior legal adviser at the International Center for Not-for-Profit Law. Nick Robinson, welcome.

NICK ROBINSON: Thanks for having me.

KELLY: So we're just four months into the 2021 legislative season. How many bills have been introduced that would fit under this umbrella of anti-riot or anti-protest legislation?

ROBINSON: Since the killing of George Floyd this past May, we've seen over 90 anti-protest bills introduced in 35 states that undermine the right to peaceful assembly.

KELLY: And what are some of the common themes that you're seeing across these bills?

ROBINSON: Many of these bills increase penalties for obstructing traffic or sidewalks, which often happens during protests. So a bill in Tennessee that was enacted in August increased the penalty to a year in jail if protesters make it inconvenient to use a sidewalk. Many of them also expand anti-rioting laws. So in Florida, Governor DeSantis recently signed this major anti-protest bill into law, and one of the most controversial parts is how it defines rioting to potentially capture peaceful protesters who engage in no violence at all.

So for example, if you're, let's say, at a large protest and a handful of people decide to kick over trash can, you can potentially be arrested for rioting for just being part of that same crowd. And the penalties are extreme. So under the new law, rioting's a felony. And if there's more than 23 people in the crowd, it can be punishable by up to 15 years in jail. So these vague provisions and these really life-altering penalties can easily intimidate peaceful protesters.

KELLY: Are these bills constitutional? I mean, we've all read the First Amendment. It protects freedom of speech. It protects the right of people peaceably to assemble.

ROBINSON: Yeah. So we're already seeing many of these bills as they're getting passed being challenged in court. And I think we're going to see a number of more constitutional challenges going forward. I think on one level, they're going to be challenged based on viewpoint discrimination because some of the state legislators who are passing these bills seem to be targeting the tactics, such as street protests, of Black Lives Matter, you know, a specific protest movement. And it's unconstitutional to target a protest group just because you disagree with their message. We're also going to see challenges, I think, for particularly these anti-riot acts for just being overbroad and vague.

KELLY: To stay with Florida for a second, Governor DeSantis says what he has signed, and I'll quote him, "is the strongest anti-looting (ph), anti-rioting, pro-law enforcement piece of legislation in the country." He is framing this as support for police. And I want to note that most of the protests in Florida, as elsewhere in the last year, were peaceful. There were some incidents of violence, yes, but mostly peaceful. But this is a message that will resonate, and clearly is, among Republicans across the country.

ROBINSON: Yeah. And I think that's right to take a step back and say, you know, look, this was in direct response to the Black Lives Matter protests of last summer. We should be clear there's - it's already illegal to engage in violence, to engage in property destruction. The police have plenty of tools to deal with those kinds of challenges. What these bills are doing is they're sending an intimidating message to peaceful protesters.

I think we should step back and realize that, you know, when we think about positive social change in this country - whether it was the civil rights movement, fights for LGBTQ rights, women's suffrage - they all came out of protest movements. And so now we're seeing these acts that undermine peaceful assembly. And this comes with, you know, serious costs to the future of our democracy.

KELLY: Nick Robinson of the International Center for Not-for-Profit Law. Thank you so much for joining us.

ROBINSON: Thank you so much. Transcript provided by NPR, Copyright NPR.