Are Public Protests in Jeopardy? Trends Indicate They Could Be

Officials in states including Georgia, Michigan, Oregon and Arizona have been pushing legislation recently that would restrain a person's ability to freely engage in certain protest tactics and demonstrations.

For example, a bill proposed in Tennessee would reduce the liability of a driver striking a protester who had been blocking a roadway. A Washington state senator called for protesters to be charged with "economic terrorism." Governing officials in Oregon suggested a bill that would allow public colleges and universities to expel students if they were convicted of being involved in a protest that had turned violent. 

"These bills could limit people's willingness to protest, which could be very serious for democracy," said Jennifer Earl, a professor in the University of Arizona School of Sociology.

Earl pointed to SB 1142, introduced last month in Arizona. The bill would have expanded the definition of a riot, effectively holding protest organizers accountable for the actions of any person at a protest event they helped plan. The bill passed in the Senate, but not the House, and it propagated concern.

"It seemed designed to make protesting risky," Earl said. 

The bill also would have allowed property suspected to have been used in a crime to be seized — for example, a home, if there was evidence that it had been used in planning a protest that ultimately resulted in violence or property damage. 

"The proposed Arizona bill was very serious because if you helped to organize a protest and someone at the event used violence the police can seize property if it's related to planning or carrying out the event," Earl said. "Who wants to risk their home or car to plan a protest?"

The uptick in legislative bills meant to curb public dissent may seem unprecedented, but that is not so. Earl said a high-water mark period of legislative bills attempting to control democratic acts came during the 1960s and '70s.

"During that time, a lot of states passed laws. For example, some states denied financial aid to students if they had a criminal background. The goal behind the law was to remove people convicted of protest-related crimes from campuses," Earl said.

Toni Massaro, a UA Regents' Professor of Law and the Milton O. Riepe Chair in Constitutional Law, said part of what is motivating the present-day control of protests and demonstrations is a fear of disruption in public spaces.

"The mere fear of disruption, though, is not a constitutionally sound reason to suppress speech in a public forum. The disruption must be imminent, and government is expected to protect the expression insofar as possible first," Massaro said.

"The history of efforts to punish or restrain these effects of political speech is as long as history of the speech itself," she said. "Today's versions apparently are coming from Republican legislators who are reacting to political protests. Some are efforts to beef up existing regulations, while others are new efforts to clamp down on protesters based on the argument that they cause disruption and result in other, secondary effects."

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Published Date: 

03/28/2017 - 12:05pm