RECENT STATE LEGISLATION SEEKS TO LIMIT DISRUPTIVE PROTESTS
By: Jorgen Lervick, Volume 101 Staff Member
On January 21, 2017, just one day after President Donald Trump was sworn in as the forty-fifth President of the United States of America, more than two million people in cities all across the country and the world gathered to support women’s and civil rights and to protest President Trump. The sheer number of people that came out during this protest shut down many areas of large cities. In Washington, DC, for example, protestors jammed the metro system, making it difficult for passengers to get anywhere in the vicinity of the march. By the end of the day, it was nearly impossible to encounter someone in a major metropolitan city who had not been involved in or affected by the march.
Protests that disrupt the normal operations of a city are not uncommon. In fact, due to the increased media coverage surrounding these disruptive protests, they have been shown to be effective at raising awareness for specific issues. In recent years, protestors have used a number of different tactics to disrupt peoples’ daily lives in an effort to effect change. From Occupy Wall Street, to Black Lives Matter, to the protests against the Dakota Access Pipeline, protestors have attempted to cause as large a disruption as possible in order to bring attention to their respective causes.
As a result of the disruptive nature of recent protest movements, legislators in many states have introduced bills or have declared their intention to introduce bills that either severely limit or threaten rights of individuals to protest. Bills have been introduced or threatened to be introduced in the following states in the past few months: Arizona, Colorado, Florida, Georgia, Indiana, Iowa, Michigan, Minnesota, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Virginia, and Washington.
As these bills directly target an individual’s right to protest, it is important to consider certain First Amendment implications that arise with such limits. An analysis of how the courts have interpreted the First Amendment with respect to an individual’s right to freedom of speech and protest followed by an application of those standards to recent laws in Minnesota and North Dakota is discussed in greater detail below.
I. PROTESTING AND ITS FIRST AMENDMENT IMPLICATIONS
The First Amendment is quite clear in protecting an individual’s right to protest. The Supreme Court has held that protesting is not simply limited to marching and speaking—the First Amendment protections also extend to symbolic speech such as staging a sit-in or flying a red flag in support of communism, among other actions.
Over the years, protests have received varying treatment from the courts. Some courts would find that municipal laws requiring permits were permissible and did not constitute unlawful prior restraints, and in recent years, certain limitations placed on protests have been seen as accepted exceptions to freedom of speech under time, place, and manner restrictions. The Supreme Court has routinely found that certain reasonable time, place, and manner restrictions on freedom of speech may be necessary to protect substantial governmental interests. Further, the Supreme Court has also clarified that such time, place, and manner restrictions must be “narrowly tailored to serve the government’s legitimate, content-neutral interest.”
Generally speaking, the Court has held that these time, place, and manner restrictions dictate that if protestors are able to protest the funeral of a dictator, they must also be able to protest the funeral of a fallen soldier. The reasonable time, place, and manner restrictions typically depend on the context and the circumstances at issue; for example, protests that (a) are incredibly noisy; (b) block “ordinary uses of the place” such as traffic; or (c) destroy property may allow for governmental intervention. Thus, it may be possible for the government to impose restrictions on when protestors may disrupt the flow of traffic. Some protests that anticipate that type of disruption secure permits, which allow law enforcement the opportunity to divert traffic as much as possible. However, others do not obtain necessary permits, disrupt “ordinary uses of the place” and as such, do not receive First Amendment protection.
While it could be argued that disruptive protest tactics, like those deployed by Occupy Wall Street, Black Lives Matter, and the Dakota Access Pipeline protestors should be prohibited due to the amount of strain they cause to a city, these types of protest are valuable tools used to spread a message to those in power. It is highly unlikely to find someone who does not know about any of these movements or what they have stood for, which alone demonstrates the value the widespread debate brings to society.
Disruptive protests, like those of the Black Lives Matter movement, have greatly increased in popularity in the last few years, partly due to their effectiveness at causing a disruption that affects numerous individuals. As one historian puts it: “If you can find a way to jam up a highway—literally have the city have a heart attack, blocking an artery—it causes people to stand up and pay attention.” These types of protests are vital to spreading a message about social issues. If even a few states begin to enact laws that impose greater limits on protects, the chilling effect could be insurmountable.
II. MINNESOTA ANTI-PROTEST LEGISLATION
In Minnesota, protestors have used disruptive tactics such as blocking roadways, protesting at the airport, and camping out in front of a metropolitan police station to achieve their goals. Recently, the Black Lives Matter Movement has taken to the street to protest police violence, resulting in blocked highways, and creating the need for additional police presence. As a result of the disruption caused by these protests, Representative Nick Zerwas introduced a bill targeting protestors whose protests require a law enforcement response.
Representative Zerwas’s bill, HF 322, would allow governmental officials to sue protestors in order to recover for “public safety costs related to unlawful assemblies and public nuisances.” Essentially, this bill would allow governmental officials to bill protestors for any unlawful protests in which they participate. As mentioned above, the bill was introduced as a result of the large amount police forces in the area have spent in recent months policing protests and road blockades in the Minneapolis-St. Paul area.
While many lawmakers praised Representative Zerwas’s bill, others were skeptical regarding the constitutional implications of such a measure. Although the bill is aimed at protecting motorists and saving law enforcement money in policing costs, some lawmakers argued that the bill was too vague with respect to who could be held responsible for the protests. Further, other critics have argued that this bill could allow police to pick and choose which protests to stop, thereby having a chilling effect on civil disobedience. By charging protestors for the costs of a law enforcement response simply by being a member of the protest, this could have a significant chilling effect because individuals could be worried about having to pay for their right to protest, thereby potentially reducing the number of protests. Furthermore, while this bill was introduced following recent protests such as the Black Lives Matter protests, immigration protests, and the Women’s March,  it is unlikely that the bill is content-neutral and tailored to public safety needs.
III. NORTH DAKOTA ANTI-PROTEST LEGISLATION
In North Dakota, Representative Keith Kempenich introduced a bill that would protect drivers from the consequences of hitting a protestor with their car. Specifically, the proposed legislation protects a driver “who unintentionally causes injury or death to an individual obstructing vehicular traffic” from being found guilty of an offense. While some argue that this bill is meant to prohibit protestors from blocking roadways, states already have anti-obstruction laws in place and that this bill is more likely targeted to punishing protestors from “having their foot on the wrong side of the highway.”  Similar to the bill introduced in Minnesota, this bill was inspired by recent protests in North Dakota, specifically, protests against the Dakota Access Pipeline.
As briefly mentioned above, for the past several months, individuals have been protesting the proposed Dakota Access Pipeline, which protestors claim would threaten the water source for many Native Americans in North Dakota. Toward the end of the year, the tensions between the police officers and protestors grew when police used water cannons against the protestors in freezing temperatures. Despite the cold, protestors stayed in the camps they had created in an attempt to persuade the government to change the route of the Dakota Access Pipeline. As the temperatures grew colder, President Obama directed the Army Corps of Engineers to deny an easement that was required in order to construct the pipeline, thereby stalling its construction, appeasing protestors, and allowing them to return home. Despite President Obama’s actions, President Trump recently issued an executive order effectively restarting progress on the Dakota Access Pipeline. With the new executive order, it is likely that protests will recommence in the area.
In addition to Representative Kempenich’s bill, other North Dakota legislators have also proposed other anti-protest legislation. Representative Al Carlson proposed a bill that prevents protestors from being able to wear a mask. The purpose, Representative Carlson said, is to give police and other governmental officials a better direction when dealing with protestors. The bill goes much further than preventing protestors from being able to wear a mask—it would bar individuals from wearing masks, hoods, or any material that covers part or all of the face.
This bill ultimately passed through both the North Dakota House and Senate and is indicative of how proposed anti-protest laws affect individuals’ lives beyond a simple protest. While the bill does specify that it only prohibits the wearing of masks while committing a crime, the fact that many of the Dakota Access Pipeline protestors wore masks to protect their faces from the cold while protesting indicates that the bill was enacted more as a response to protestors and is likely not content-neutral and a permissible use of the government’s power to protect public safety.
Disruptive protests—especially those that disrupt the publics’ daily lives—tend to be quite successful in raising awareness for a particular issue. As disruptive protests have become a more common tactic by protestors, state legislatures have attempted to pass legislation to limit the effects of the disruption. While these proposed bills could have negative implications on individuals’ First Amendment rights, it is unlikely that many of these bills will be passed into law. Even if some of the proposed legislation becomes law, it is unlikely that they will be upheld when faced with a First Amendment challenge due to the potential chilling effect on freedom of speech and protest.
- Meghan Keneally, More Than 1 Million Rally at Women’s Marches in US and Around World, ABCNews (Jan. 22, 2017), http://abcnews.go.com/Politics/womens-march-heads-washington-day-trumps-inauguration/story?id=44936042; Heidi M. Przybyla & Fredreka Schouten, At 2.6 Million Strong, Women’s Marches Crush Expectations, USA Today (Jan. 21, 2017), http://www.usatoday.com/story/news/politics/2017/01/21/womens-march-aims-start-movement-trump-inauguration/96864158. ↑
- Przybyla & Schouten, supra note 1. ↑
- Keneally, supra note 1. ↑
- Peter Beinart, The Violence to Come, Atlantic (Mar. 3, 2016), https://www.theatlantic.com/politics/archive/2016/03/the-violence-to-come/471924. ↑
- Rocco Parascandola, Activists Post Identity of NYPD Officer Who Pepper-Sprayed “Wall Street” Protesters at Union Square, Daily News (Sept. 26, 2011), http://www.nydailynews.com/news/crime/activists-post-identity-nypd-officer-pepper-sprayed-wall-street-protesters-union-square-article-1.959175 (discussing Occupy Wall Street protests); Andrea Noble, Black Lives Matter Activists Crash Checkpoint to Disrupt Donald Trump’s Inauguration, Wash. Times (Jan. 20, 2017), http://www.washingtontimes.com/news/2017/jan/20/black-lives-matter-activists-crash-checkpoint-disr (discussing disruption caused by the Black Lives Matter protests). ↑
- Michael Levitin, The Triumph of Occupy Wall Street, Atlantic (June 10, 2016), https://www.theatlantic.com/politics/archive/2015/06/the-triumph-of-occupy-wall-street/395408. ↑
- Niraj Chokshi, How #BlackLivesMatter Came to Define a Movement, N.Y. Times (Aug. 22, 2016), https://www.nytimes.com/2016/08/23/us/how-blacklivesmatter-came-to-define-a-movement.html. ↑
- Robinson Meyer, The Legal Case for Blocking the Dakota Access Pipeline, Atlantic (Sept. 9, 2016), https://www.theatlantic.com/technology/archive/2016/09/dapl-dakota-sitting-rock-sioux/499178. ↑
- Spencer Woodman, Update: Lawmakers in Ten States Have Proposed Legislation Criminalizing Peaceful Protest, Intercept (Jan. 23, 2017), https://theintercept.com/2017/01/23/lawmakers-in-eight-states-have-proposed-laws-criminalizing-peaceful-protest. ↑
- Christopher Ingraham, Republican Lawmakers Introduce Bills to Curb Protesting in at Least 18 States, Wash. Post (Feb. 24, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/02/24/republican-lawmakers-introduce-bills-to-curb-protesting-in-at-least-17-states/?utm_term=.c4d5b3a16c32. ↑
- U.S. Const. amend. I. ↑
- Brown v. Louisiana, 383 U.S. 131 (1966). ↑
- Stromberg v. California, 283 U.S. 359 (1931). ↑
- Handley v. City of Montgomery, 401 So.2d 171, 181 (Ala. Crim. App. 1981) ↑
- See Grayned v. City of Rockford, 408 U.S. 104 (1972); see also Nick Suplina, Crowd Control: The Troubling Mix of First Amendment Law, Political Demonstrations, and Terrorism, 73 Geo. Wash. L. Rev. 395, 399 (2005) (providing an overview of time, place, and manner restrictions). ↑
- Grayned, 408 U.S. at 115. ↑
- Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). ↑
- See e.g., Snyder v. Phelps, 562 U.S. 443 (2011) (finding that a group protesting the funeral of a fallen soldier did so in a public space, away from the funeral, about a matter of public concern, thereby granting them First Amendment protection). ↑
- Braden Goyette, Just How Much Can the State Restrict a Peaceful Protest?, ProPublica (Nov. 15, 2011), https://www.propublica.org/article/explainer-just-how-much-can-the-state-restrict-a-peaceful-protest. ↑
- See, e.g., Tabatha Abu El-Haj, Defining Peaceably: Policing the Line Between Constitutionally Protected Protest and Unlawful Assembly, 80 Mo. L. Rev. 961, 961, 965 (2015) (discussing how protests such as Black Lives Matter, however peaceful, can be disruptive and inconvenient in a modern city yet effective in spreading its message). ↑
- Emily Badger, Why Highways Have Become the Center of Civil Rights Protest, Wash. Post (July 13, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/07/13/why-highways-have-become-the-center-of-civil-rights-protest/?utm_term=.f93e3fcb1f57. ↑
- Clay Masters, Bills Across the Country Could Increase Penalties for Protesters, NPR (Jan. 31, 2017), http://www.npr.org/2017/01/31/512636448/bills-across-the-country-could-increase-penalties-for-protesters. ↑
- Randy Furst, Bill to Crack Down on Minnesota Protesters Appears to be National Trend, Star Trib. (Jan. 24, 2017), http://www.startribune.com/house-hearing-ends-amid-protest-after-bill-cracking-down-on-demonstrators-moves-forward/411660166. ↑
- Jared Goyette, Minnesota Bill Would Make Convicted Protesters Liable for Policing Costs, The Guardian (Jan. 25, 2017), https://www.theguardian.com/us-news/2017/jan/25/minnesota-protesters-bill-liable-policing-costs. ↑
- Eric Levenson & Carma Hassan, Proposed Laws Would Crack Down on Protesters Who Block Roadways, CNN (Jan. 26, 2017), http://www.cnn.com/2017/01/25/us/nd-protest-driver-bill-trnd. ↑
- H.F. 322, 90th Leg. (Minn. 2017). ↑
- Tim Nelson, Activists, DFLers Push Back Against Bill to Hold Protesters Liable for Costs, MPR News (Jan. 24, 2017), https://www.mprnews.org/story/2017/01/24/mn-panel-votes-protesters-liable-costs. ↑
- Goyette, supra note 24. ↑
- Id. ↑
- On the Media: See You in Court, NPR (Feb. 10, 2017), http://www.npr.org/podcasts/452538775/on-the-media. ↑
- Furst, supra note 23. ↑
- See You in Court, supra note 30. ↑
- Jennifer Brooks, North Dakota Bill Aimed at Standing Rock Protest, Star Trib. (Jan. 16, 2017), http://www.startribune.com/north-dakota-bill-aimed-at-standing-rock-protest/410860535. ↑
- H.B. 1203, 65th Leg. Assemb. (N.D. 2017). ↑
- See You In Court, supra note 30. ↑
- Brooks, supra note 33. ↑
- Meyer, supra note 8. ↑
- Alan Taylor, Water Cannons and Tear Gas Used Against Dakota Access Pipeline Protesters, Atlantic (Nov. 21, 2016), https://www.theatlantic.com/photo/2016/11/water-cannons-and-tear-gas-used-against-dakota-access-pipeline-protesters/508370. ↑
- Tim Stelloh et al., Dakota Pipeline: Protesters Soaked with Water in Freezing Temperatures, NBC News (Nov. 21, 2016), http://www.nbcnews.com/storyline/dakota-pipeline-protests/dakota-pipeline-protesters-authorities-clash-temperatures-drop-n686581. ↑
- Chris D’Angelo & Lydia O’Connor, Army Halts Construction of Dakota Access Pipeline, Huffington Post (Dec. 4, 2016), http://www.huffingtonpost.com/entry/obama-dakota-access-pipeline-halt_us_5844882be4b0c68e04817323. ↑
- Eric Spillman & Christina Pascucci, Trump Opens Keystone XL, Dakota Access Pipelines to Construction Again with Executive Action; Protestors Gather to Fight Back, KTLA5 (Jan. 24, 2017), http://ktla.com/2017/01/24/trump-opens-keystone-xl-dakota-access-pipelines-to-construction-again. ↑
- Nick Smith, Bill Would Ban Protesters from Using Face Masks, Bismarck Trib. (Jan. 17, 2017), http://bismarcktribune.com/news/local/govt-and-politics/bill-would-ban-protesters-from-using-face-masks/article_ca53a54e-3251-5c43-b213-91ce02d269dd.html. ↑
- Id. ↑
- H.B. 1304, 65th Leg. Assemb. (N.D. 2017). ↑
- Bill Actions for H.B. 1304, N.D. Legis. Branch, http://www.legis.nd.gov/assembly/63-2013/bill-actions/ba1304.html (last visited Mar. 23, 2017). ↑
- N.D. H.B. 1304. ↑
- Levenson & Hassan, supra note 25. ↑