Passions are running high on the topic of protests. Some States have proposed legislation that would criminalize certain protest behaviors, and I was asked for information on exactly what they’re proposing and whether these proposals run afoul of our Constitutional rights.
With my usual caveats for this series,* here’s what I’ve found.
Which states are proposing laws like this?
(I’m going to periodically update the progress of these bills. Last update was 2/25/2017.)
- SB 1142 (text of bill) introduced January 19th, 2017 – Expands the definition of “rioting” to include actions which “either disturbs the public peace or results in damage to the property of another person,” adds rioting to the list of offenses that can constitute “racketeering,” and then combines all of that with expanded definitions of “conspiracy” that explicitly includes planning a riot (here called 13-2903). If a person is guilty of conspiracy or “knows or has reason to know” that someone is conspiring, that person can get the same sentence as the person who committed the offense. Rioting is a Class 5 Felony. “A pattern of racketeering activity” could include a single act of rioting and could be punished in a variety of ways. (Passed state Senate and was transmitted to the House)
- SB 17-035 introduced January 13th, 2017 – Deals specifically with protests that involve tampering with oil and gas equipment, making it a class 6 felony. (introduced to the Senate)
- On the other hand, SB 17-062 introduced January 19th, 2017 – Would prohibit public colleges and universities from restricting student protests, such as designating specific times or places where protests are allowed. (introduced to the Senate)
- SB 1096 introduced February 21st, 2017 – Prohibits obstructing traffic during protests or demonstrations, and exempts drivers from liability for injury or death to a person who is obstructing or interfering with traffic under certain circumstances. (Filed, not yet formally introduced)
- SB 285 introduced January 9th, 2017 – Defines a “Mass traffic obstruction” as “an incident in which, as part of (or as the result of) a protest, riot, or other assembly, at least ten (10) persons obstruct vehicular traffic in violation of IC 35-44.1-2-13 (obstruction of traffic).” Requires a “responsible public official” to “not later than fifteen (15) minutes after first learning that a mass traffic obstruction exists in the official’s jurisdiction, dispatch all available law enforcement officers to the mass traffic obstruction with directions to use any means necessary to clear the roads of the persons unlawfully obstructing vehicular traffic.” (currently back from committee and awaiting vote)
- SB 160 Introduced February 10th, 2017 – Increases penalties for blocking “any highway, street, sidewalk or other public passage.” (Passed by the Senate, moving on to the House)
- SF 111 Introduced January 19th, 2017 – Would prohibit people from “intentionally blocking the movement of traffic on certain highways.” (referred to committee)
- HB 4643 introduced May 26th, 2015 – “House Bill 4643 would amend Public Act 176 of 1939, which created the Employment Relations Commission, to modify the penalties for mass picketing. In addition to the current misdemeanor penalties, a civil fine could be levied and injunctive relief would be available.” (passed House in December 2016, would need to be re-introduced this year)
- HF 390 introduced January 23rd, 2017 – Obstructing a roadway would become a crime, and the penalties for obstructing traffic to a highway or airport are increased. (currently back from committee and awaiting vote)
- HF 322 introduced January 23rd, 2017 – Governmental units would be allowed to sue to recover costs related to unlawful assemblies and public nuisances. (currently in committee)
- HB 179 introduced December 8th, 2016 – Makes intentionally concealing one’s identity while engaging in “the crime of unlawful assembly or rioting” a class A misdemeanor. (introduced to House)
- HB 826 introduced February 2nd, 2017 – Makes intentional blocking of traffic unlawful and designate it a class A misdemeanor. (currently in committee)
- SB 2730 Introduced on or before January 16th, 2017 – Makes obstructing traffic a felony offense. (Officially died in committee 1/41/2017)
- The News & Observer reported that State Senator Dan Bishop plans to introduce a bill making it illegal to “threaten, intimidate, or retaliate against a present or former North Carolina official.” Senator Bishop’s list of introduced bills, however, does not include such a bill, and no relevant bills turn up with a keyword search of current legislation as of 2/16/2017. (not yet introduced)
- HB 1203 (text of the bill) introduced January 9th, 2017 – Creates a “liability exemption” for “a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic.” It also makes it “unlawful” to walk in the road if there is a sidewalk, on the shoulder if there is no sidewalk, or on the right-hand side of a two-way street. (defeated by the House)
- HB 1123 introduced February 6th, 2017 – Increases penalties for trespassing on or tampering with “critical infrastructure” such as pipelines, refineries, or power plants. (Back from committee and waiting for House vote)
- SB 540 introduced January 9th, 2017 – Would require public institutions of higher education to expel any student convicted of participating in a riot. (currently in committee)
- HB 1087 introduced January 25th, 2017 – authorizes the recovery of attorney’s fees in civil actions relating to highway obstructions. (Passed both chambers as of 2/24/2017, must be signed by governor)
- SB 176 introduced February 3rd, 2017 – Allows the Governor to declare a “public safety zone” if “an event” looks like it “may consume significant public resources, poses a threat to public or private property, and poses a threat to the health and welfare of the public.” It would then be a Class 1 misdemeanor to trespass into that zone. Obstructing highways would also be a Class 1 misdemeanor. If passed, this law would expire in 2020. (Passed Senate on 2/23/2017, now in the House)
- HB 668 and SB 944 (text of the bill) introduced February 9th, 2017 – Provides civil immunity for the driver of an automobile who injures a protester who is blocking traffic in a public right-of-way if the driver was exercising due care. (both versions are now in committee)
- SB 1055 introduced January 11th, 2017 – Makes it a Class 1 misdemeanor to remain at the scene of a “riot or unlawful assembly” after being told to disburse. (defeated by the Senate)
- SB 5009 introduced December 15th, 2016 – Protests that cause “economic disruption” are illegal. “Sec. 1. The legislature recognizes and fully supports the ability of individuals to exercise their rights of free speech, press, and peaceful assembly, and to engage in other constitutionally protected activities. The legislature finds, however, that there is no right to harm another person or prevent 10 another person from exercising his or her rights. … Sec. 2. The prosecuting attorney may file a special allegation when sufficient evidence exists to show that the accused or an accomplice committed the offense to cause an economic disruption.” (currently in committee)
Can they do that?
The question seems to rest on the exact extent of the 1st and 14th Amendments’ protection for peaceful assembly, and what exactly “peaceful” means.
- The 1st Amendment prohibits Congress from restricting “the right of the people peaceably to assemble.”
- The 14th Amendment is the “due process” amendment, and it also prohibits States from making “any law which shall abridge the privileges or immunities of citizens of the United States” (which includes the rights from the 1st Amendment).
These amendments have been the subject of many a court case, and these have helped define the boundaries of “peaceful” and “assembly” and who is covered. — Extra caveats here that I am not a legal scholar, but following citations by people who are legal scholars (starting with Cornell’s Legal Information Institute and the Library of Congress) points to some of the key cases dealing with the right to peaceful assembly.
- Whitney v. California 274 U.S. 357 (1927). States can impose restrictions if they are “sufficiently clear and explicit to satisfy the requirement of due process of law.”
- De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). Distinguished between the rights themselves and actions that can result from abuse of those rights. The justices ruled that legislation “can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed.”
- Hague v. CIO 307 U.S. 496 (1939). Justice Stone said, “The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Even though this was not part of the main ruling
- Cole v. Arkansas 338 U.S. 345 (1949). Reaffirmed multiple previous rulings that said the right to peaceful assembly does not include the right to interfere with traffic on public streets or otherwise threaten public safety and order.
- Ward v. Rock Against Racism 491 U.S. 781 (1989). Held that governments can restrict the time, place, and manner of public assembly and speech as long as these restrictions are “justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”
* Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.