This decade has witnessed a wave of mass protests — including the Occupy movement, Standing Rock, the Women’s March, Climate March, March for Our Lives, and most prominently, demonstrations against police brutality and racism — with few parallels in American history.
It’s also seen a fierce backlash by government authorities aimed at aggressively managing dissent and, in some cases, quashing it outright in ways that appear to violate some of the most sacredly held rights afforded by the Constitution.
You don’t hear that much about it, but open a copy of the nation’s founding document, and it’s hard to miss. It’s there in the First Amendment, right alongside the better-known freedoms of religion, speech, and the press: the right of the people “peaceably to assemble, and to petition the government for a redress of grievances.”
But at one of the more troubled moments in our history — a fraught juncture in which the potential of a contested election looms over a nation already struggling with a deadly virus, an economic collapse, and an emergent far right that’s inclined toward political violence — our right to assembly appears to be under a sustained assault just when we need it the most. The shocking June 1 attack on peaceful protesters in front of the White House and the subsequent deployment of federal paramilitary troops to U.S. cities are only some of the most visible attempts to “dominate the battlespace,” as defense secretary Mark Esper put it. “There’s really this no-holds-barred approach to suppressing dissent,” Verheyden-Hilliard says. “In other circumstances where we’ve seen a crackdown on movements, it’s often much more veiled. But in this instance, it’s overt, it’s vicious, it’s brutal.”
And it’s hitting protest movements from all sides and at all levels of government. State legislatures are passing bills dramatically increasing penalties for what were once routine acts of civil disobedience. Police armed with military-grade weaponry are subjecting demonstrators to chemical agents, brutal beatings, rubber-tipped ammunition, and even sound cannons for participating in precisely the sort of activity the framers of the Constitution sought to protect. Municipal governments are placing onerous “time, place, and manner” restrictions on demonstrations, limiting the ability of protests to gain attention and generate public debate. Political leaders who hesitate to crack down aggressively, typically because they still value the First Amendment, are being threatened with funding cuts to their cities by the Justice Department to force compliance.
Some protesters have even been charged with terrorism, including a pair of Oklahoma teenagers whose alleged crime was breaking the windows of a bail bond shop. Attorney General Bill Barr recently urged local prosecutors to consider bringing federal sedition charges — a rarely used law — against protesters, and Trump mused about invoking the Insurrection Act to allow the military to be deployed in U.S. cities. Then there was the town in North Carolina, seeking to protect a Civil War monument, that tried to ban protests altogether.
Demonstrators are increasingly forced to contend with threats to their physical safety, and not only from the police. Many have found themselves confronted by armed vigilantes inflamed by false social media posts, posses of Proud Boys firing frozen paintballs and spraying bear mace, or wannabe cops like teen gunman Kyle Rittenhouse and members of various right-wing paramilitary groups, who often seem to be operating as de facto deputies of law enforcement. Meanwhile, demonstrators have to consider the risk of a car attack. Though James Fields is serving life in prison in the murder of Heather Heyer, more than 100 incidents of cars hitting protesters have been reported, including by New York and Detroit police officers, and many of those assaults have gone unpunished. (Several years back, bills were introduced in six states aimed at shielding drivers from criminal and civil liability for inadvertently hitting protesters; they all failed, due in part to the outcry over Heyer’s murder.)
For many civil rights attorneys, the multiple violations of the First Amendment could hardly be starker. “It’s incredibly concerning,” says Elly Page, a legal adviser for the International Center for Not-for-Profit Law. “This is a fundamental constitutional right. It’s embedded in American history, our right to protest.” Indeed, it’s impossible to imagine any of the nation’s mass social movements — on behalf of abolition, organized labor, women’s rights, civil rights, gay rights, and so many others — without it, to say nothing of the American Revolution itself.
“When there are episodes of social movements — and we’re in the midst of a quite dramatic and impressive social movement — you can always expect a backlash.”
There have, of course, been waves of repression throughout the nation’s history, from the brutal response to the labor movement of the 1930s and the anti-Communist hysteria of the 1950s through Nixon-era attempts to suppress the civil rights and antiwar movements. The latest wave began with Occupy Wall Street and accelerated several years later during the extraordinary yearlong campaign against the Dakota Access Pipeline. In response, panicked oil and gas companies pushed states to adopt harsh new rules against protesting near “critical infrastructure.” In all, a dozen state legislatures did so, generally using cut-and-paste model legislation drafted by the corporate interest group ALEC, the American Legislative Exchange Council.
Subsequent protest movements, including Black Lives Matter, have prompted additional countermeasures on the state level. There are stiff new penalties against impeding highway traffic, camping on state property, and even wearing a face covering (a statute that has come to seem especially severe during the pandemic). Protesters who violate the law in Tennessee, which currently has some of the harshest anti-protest statutes on the books, stand to lose their voting rights. And a bill passed in West Virginia following the successful 2018 teachers’ strike there protects law enforcement officers from liability for death or injury to protesters in the course of dispersing “riots” or “unlawful assemblies.”
“When there are episodes of social movements — and we’re in the midst of a quite dramatic and impressive social movement — you can always expect a backlash,” notes Timothy Zick, the John Marshall Professor at William and Mary Law School and author of The First Amendment in the Trump Era. “And the larger the movement, often the larger the backlash. So today, from local law enforcement all the way up to the commander in chief, you have a ramping up of both the rhetoric and the tools used against protesters.”
A few years ago, the flurry of proposed legislation grew so overwhelming that Page and her colleagues launched a public database to keep track of it all. Fortunately, she says, many of the most egregious proposals were defeated or never actually brought to a vote. “There are a lot of bills proposed that seem to be kind of symbolic,” she says, “where lawmakers are trying to position themselves politically by saying, ‘Oh, we’re going to crack down on XYZ type of protest’ through bills that are either plainly unconstitutional or too extreme to fly.”
A recent set of proposals by Florida Gov. Ron DeSantis may fit into that category. Among other things, DeSantis has advocated making it a felony to block a roadway or participate in a protest at which property damage takes place. Anyone convicted of striking a police officer with a projectile (including a water bottle) would earn a mandatory minimum of six months in prison. And a conviction for participating in a “violent or disorderly assembly” would automatically render the defendant ineligible for state benefits or government employment — a rule that could theoretically be applied to elected officials. (That seems far-fetched until you consider the felony charges brought by the Portsmouth, Virginia, police department against a state senator, local civil rights leaders, and public defenders for daring to attend a protest that, hours after they’d left, resulted in the destruction of several monuments to the Confederacy.)
But DeSantis doesn’t stop there. Under his proposal, someone who dares to organize a protest or donate money to support demonstrators could run afoul of the same racketeering statutes typically applied to drug cartels, bringing a prison sentence of up to 30 years. And a driver who plows into a crowd of protesters could escape punishment “if fleeing for safety from a mob.” Meanwhile, the proposal prohibits state grants to any municipality that shifts funding away from law enforcement, precisely the goal of many Black Lives Matter protests. DeSantis has yet to release the text of a bill, but actual legislation may well be beside the point.
Such laws “would probably be held unconstitutional if challenged,” notes Tabatha Abu El-Haj, a professor at Drexel University’s Kline School of Law and a noted expert on the right to assembly. The real goal, she believes, is to further “a discursive strategy to delegitimize disruptive crowds and to criminalize them and suggest they’re somehow antithetical to democracy.”