Across the US, a Republican push to criminalise protest in time of Donald Trump

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This was published 7 years ago

Across the US, a Republican push to criminalise protest in time of Donald Trump

By Mitch Smith and Michael Wines
Updated

Bismarck, ND: About an hour after some 200 police officers cleared the last demonstrators against the Dakota Access Pipeline from their sprawling encampment on the North Dakota prairie last week, Governor Doug Burgum signed into law four bills aimed at making it easier to control such protests.

With a few strokes of a pen, he placed the state in the vanguard of an emerging backlash by conservative forces against political and social advocates who see demonstrations -- however unruly -- as free speech protected by the Constitution.

In a season rife with demonstrations over immigration, pipelines, abortion, women's rights and more, Republican legislators in at least 16 states have filed bills intended to make protests more orderly or to toughen penalties against ones that go awry. Republicans in two other states, Massachusetts and North Carolina, have said they will file protest-related bills.

Those numbers include only bills whose sponsors have specifically linked them to protests, said Jonathan Griffin, a policy analyst who tracks the measures at the National Conference of State Legislatures. How many will be enacted is unclear; a few already have been pronounced dead in committee.

Police intervene and arrest some activists during the protest against President Donald Trump's 90-days ban at JFK airport in New York.

Police intervene and arrest some activists during the protest against President Donald Trump's 90-days ban at JFK airport in New York.Credit: Anadolu Agency

Some sociologists and legal experts say the bills are in line with a general trend toward tougher treatment of protesters after especially disruptive demonstrations like the Occupy Wall Street movement in New York City and the 2014 violence in Ferguson, Missouri.

But interviews and news reports suggest that some of the measures are either backed by supporters of President Donald Trump or are responses to demonstrations against him and his policies. After a Nashville motorist struck safety workers who were escorting anti-Trump protesters at a crosswalk, a Tennessee state representative introduced legislation that would relieve motorists of any liability should they accidentally hit someone deliberately blocking a street.

An Iowa bill, filed after about 100 anti-Trump protesters closed a highway near Iowa City, would make blocking high-speed roads a felony punishable by up to five years in prison and $US7,500 in fines.

Similar legislation in Mississippi would impose a fine of up to $US10,000. In Washington state, a Republican senator who helped run Trump's campaign there filed legislation that would make it a felony to commit "economic terrorism," defined as intentionally breaking the law to intimidate private citizens or to obstruct economic activity.

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Protesters demonstrate in solidarity with members of the Standing Rock Sioux tribe in North Dakota over the construction of the Dakota Access oil pipeline in Philadelphia in 2016.

Protesters demonstrate in solidarity with members of the Standing Rock Sioux tribe in North Dakota over the construction of the Dakota Access oil pipeline in Philadelphia in 2016.Credit: AP

A Minnesota bill, responding to protests over the police shooting last year of an African-American man in a suburb of St. Paul, would allow cities to sue demonstrators who violate the law for the cost of policing their protests. And in North Carolina, a legislator promised to propose a measure making it illegal to "threaten, intimidate or retaliate" against state officials after hecklers denounced Governor Pat McCrory, a Republican who lost a re-election bid in November.

Those two measures and perhaps others may face constitutional hurdles, said Kevin F. O'Neill, a scholar of protest law at the Cleveland-Marshall College of Law at Cleveland State University. "There's a First Amendment right of access to sidewalks, public squares and even public streets," he said. "Heckling is a well-protected First Amendment right."

Dianne Reeves, of Seattle, holds an upside-down U.S. flag, commonly seen as a sign of distress, and a photo from the Standing Rock oil pipeline protests, in Seattle.

Dianne Reeves, of Seattle, holds an upside-down U.S. flag, commonly seen as a sign of distress, and a photo from the Standing Rock oil pipeline protests, in Seattle.Credit: AP

But demonstrators who fail to inform authorities of protest plans and locations and to secure a permit are on far shakier legal ground, he added. In those cases, actions like blocking a street would most likely be subject to prosecution. Most of the proposals appear to address protests that lack permits.

In many cases, the bills' sponsors emphasise that they are trying to improve public safety or keep order, not squelch free speech.

"We support the First Amendment altogether and want people to get out and do what they want," said state Senator George B. Gainer, Republican of Florida, who has proposed legislation that would raise fines for blocking traffic and, like the Tennessee measure, indemnify drivers who accidentally hit protesters. "But they shouldn't endanger themselves or others."

Some free-speech advocates, however, have their doubts. "There are already laws on the books in states that say if you break something or harm somebody, you're going to be prosecuted," said Patrick F. Gillham, a sociologist at Western Washington University who studies protests. "They're troubling. They potentially have a chilling effect on protest."

In Georgia, where the state Senate has passed legislation toughening the penalty for obstructing traffic, Worth Bishop, a volunteer for the anti-Trump movement Indivisible, said the proliferation of protest-related bills took aim at the First Amendment.

"These laws are clearly designed to abridge the right of the people to lawful assembly," Bishop said. He called the proposals "intimidation from the right," saying there was scant demand for the measures from the police.

In North Dakota, legislators rejected a bill similar to Tennessee's that would have shielded motorists. But they enacted measures that expand the criminal trespass law, raise penalties for riot offenses, criminalise wearing masks and hoods while violating the law, and make it easier for out-of-state police officers to assist local authorities during events like protests.

Kyle Kirchmeier, the sheriff in Morton County, North Dakota, where the main protest camp was, cast the measures as needed additions to existing laws that were insufficient to contain the huge anti-pipeline demonstrations. "As this went along," he said, "there was definitely areas in the law that we've seen that weren't fitting, especially when people tie themselves to equipment and that type of thing."

But demonstrators and civil liberties advocates sense a dark ulterior motive, and describe the new North Dakota measures as thinly veiled attempts to quell dissent and criminalise protest. The bills passed the Republican-dominated legislature with large majorities, and took effect immediately after the governor signed them.

"They're looking for clever ways to send chilling effects," said Chase Iron Eyes, a prominent pipeline protester and recent congressional candidate who was charged with inciting a riot after a February arrest. "The state will try to devise ways to squash opposition and chill the will of people who are willing to face risks to their liberty to further their cause."

Opposition to the Dakota Access pipeline led to a remarkable mobilisation of activists, many of them Native American, who spent months camped out demanding a halt to construction.

The gathering drew international headlines, prompted violent clashes with law enforcement and led to the mobilisation of the National Guard and the installation of razor wire and roadblocks on rural byways.

In North Dakota, a rural state with a large energy industry where gatherings of such magnitude were unprecedented, the protests exhausted police resources and brought unwelcome scrutiny.

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"You have something that's chewing up tens of millions of dollars of extra law enforcement cost that we don't have," said Burgum, a Republican who took office in December when tensions were at a fever pitch, and who ordered the evacuation of the main camp last week.

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