Inauguration Day protests. The Women’s March. The March for Science. Protests against the repeal of the Affordable Care Act. In the age of the Donald Trump presidency, demonstration has become an essential tool of The Resistance.
But now, that fundamental right is under attack.
As of June 23, nineteen state legislatures have introduced bills in 2017 that in some way curb the right to protest, according to an American Civil Liberties Union database. While the majority of the bills—many of which were extreme in their wording—died in committee, anti-protest legislation has been passed in North Dakota, South Dakota, Oklahoma, and Tennessee. And in Washington, Oregon, and North Carolina, such bills are under consideration.
In sixteen of the nineteen states where these bills were introduced—and all four of the states where such measures passed—Republicans have complete control of the legislature. Washington and Oregon are the only two states under Democratic control, with one legislature—Colorado—split between the two parties. And nearly all the bills have been sponsored by Republican lawmakers.
These state-level efforts to quell dissent are not happening in isolation, though; they are part of a concerted conservative response to protests and protesters.
In North Dakota, the legislature rammed through four anti-protest bills in February in response to the demonstrations at Standing Rock against the construction of the Dakota Access Pipeline.
One bill makes the punishment for rioting more severe, which is significant because the state has often treated protesters at Standing Rock as rioters, and used riot police to make them disperse, even though the demonstrations were largely peaceful.
Another measure prohibits protesters from wearing masks, which some demonstrators have done to hide their identity. Washington state legislators introduced a similar bill, although it hasn’t yet passed.
The other two bills increase violations for trespassing, and give the state attorney general the authority to bring in agents from outside the area for “law enforcement” purposes.
The bills were opposed by Amnesty International, which warned the legislature that the measures would “discriminatorily target Indigenous Peoples and their allies opposed to the Dakota Access Pipeline.” The organization accused the bills' proponents of targeting the right to protest and reminded lawmakers of the Constitution's protection of dissent.
The bills passed on mostly party-line votes. Each has an emergency clause, meaning they went into effect immediately.
North Dakota isn’t the only state taking notice of the Standing Rock protests. South Dakota recently passed a law that caps the number of people who can gather on public lands at twenty, a clear effort to curb demonstrations against oil pipelines. The bill also raises the level of punishment for trespassing and makes obstructing roadways, a key protest strategy, a misdemeanor crime.
In supporting the bill, Republican South Dakota Governor Dennis Daugaard specifically cited his concern that DAPL-like protests would spread to his state. But Libby Skarin, policy director for the ACLU of South Dakota, told US News and World Report that the bill could function as a “preemption against potential protest activity” calling the measure “really concerning."
Additionally, in Oklahoma—which has the second largest population of Indigenous people in the country—a pair of bills have been enacted that target protesters. One bill holds trespassers responsible for any damage they cause, as well as any “person or entity that compensates or remunerates a person for trespassing.”
The measure’s sponsor, Republican Representative Mark McBride, said the legislation is meant to discourage “paid protesters.” McBride believes the majority of protesters at Standing Rock were paid, despite there being no evidence to support that claim.
The other Oklahoma bill bans trespassing on sites deemed to have “critical infrastructure,” such as pipelines. The bill contains a provision to sock organizations seen as conspiring with protesters with fines of up to $1 million.
“We’ve seen time and time again these protests that have turned violent, these protests that have disrupted the infrastructure in those other states,” said Republican Representative Scott Biggs, the bill’s author. “This is a preventative measure … to make sure that doesn’t happen here.”
But Johnson Bridgwater, head of the Oklahoma chapter of the Sierra Club, told The Intercept that these laws are “nothing more than corporate America being fearful of how successful the Standing Rock protests were.”
Other anti-protest laws not explicitly related to Standing Rock have also been introduced. In Tennessee, a law was passed that elevates the punishment for obstructing traffic on highways and streets—a common tactic of demonstrators.
The Tennessee legislature also considered, although didn’t end up passing, a measure that would have granted immunity to drivers who hit protesters blocking roadways, provided the driver used “due care.” Given the vagueness of this wording, there were concerns that the law would have essentially legalized running over protesters.
“Hit and Kill” legislation with nearly the same language as the Tennessee bill has also been introduced in North Carolina. The measure passed the House and is now in the Senate. It’s unclear whether North Carolina’s Democratic Governor, Roy Cooper, will sign the bill if the Senate passes it.
Another favorite strategy to quell protests are “economic terrorism” bills. In North Carolina, a law is currently in the legislature that would add “economic terrorism” to North Carolina’s definition of violent terrorism.
Under the proposed law, charges of economic terrorism could be brought against anyone who “willfully and maliciously or with reckless disregard” commits a crime that “impedes or disrupts the regular course of business,” if that disruption results in damage of $1,000 or more. The law could also be used against those who try to intimidate a group or the government. Finally, the proposal could also make demonstrators potentially responsible for police costs.
Legislators in Washington state introduced a similar bill to raise the punishment for acts of “economic terrorism,” the definition of which includes obstructing traffic flow and interfering with pipeline sites.
Anti-demonstration bills have also targeted students. In Oregon, a measure introduced in February would require colleges to expel students convicted of rioting. “My bill will help protect students who are peacefully protesting from bad apples in the crowd who exploit peaceful protests to engineer violent riots,” claimed the bill’s sponsor, Republican state Senator Kim Thatcher.
Oregon’s legislature is controlled by Democrats and the bill has languished in committee.
Taken together, these laws represent a concerted effort to quell people’s use of protest as a democratic right. As Lee Rowland, a senior attorney at the ACLU, told the Washington Post, the measures are "not about creating new rules that are necessary because of some gap in the law." Instead, they are about increasing the “penalties for protest-related activity to the point that it results in self-censorship among protesters who have every intention to obey the law."