Lawmakers are proposing some stunning anti-protest bills — but are they constitutional?

Lawmakers are proposing some stunning anti-protest bills — but are they constitutional?
Source: AP
Source: AP

If protests are to create material change, they must be loud, conspicuous and — most of all — disruptive. But with protests raging every day since President Donald Trump's inauguration, conservative politicians across the country are looking to dole out harsh punishments for protesters who are, in their opinion, too unruly.

In January, Indiana Sen. Jim Tomes introduced arguably the most extreme of these anti-protest bills, proposing legislation that would allow law enforcement to use "any means necessary" to remove protesters obstructing traffic. According to the Guardian, SB 285 specifies that authorities can shut down protests "even to the point of costing lives."

Opponents of the bill have called it the "block traffic and you die bill." 

Meanwhile, North Dakota lawmakers are seemingly growing tired of protests over the Dakota Access pipeline, the construction of which could destroy native lands and likely contaminate the source of drinking water for local Native Americans. 

Their solution? A House bill that would protect drivers who injure or kill protesters blocking roadways. 

"There's a line between protesting and terrorism, and what we're dealing with was terrorism out there," Rep. Keith Kempenich, the bill's sponsor, told the Washington Post

Dakota Access pipeline protesters brave a blizzard in North Dakota.
Source: Scott Olson/Getty Images

Kempenich told the Post the legislation would shield drivers who are "legally" going about their business and find themselves "in a situation they don't want to be in" — that is, a situation where they've committed vehicular manslaughter.

The proposed bill is part of a wider trend of state legislators looking to make it harder for citizens to express their discontent via public protest. 

In November, Iowa Rep. Bobby Kaufmann folded harsh penalties for protesters into what he called a "Suck it up, buttercup" bill that would make it a criminal offense to block a highway with protests. The Republican lawmaker said he was inspired to author the bill following a protest that temporarily closed a local interstate highway, which he claimed endangered the life of one of his constituents. 

But is it constitutional? It would seem pretty clear that any of these bills would fly in the face of Americans' First Amendment right to assemble — but to what extent? 

David Snyder, executive director of the First Amendment Coalition, said state and federal governments have the right to implement "reasonable time, place and manner restrictions" on protesters.

In other words, telling protesters they can't protest past a certain time or in a certain location is 100% constitutional, so long as such measures have nothing to do with the content of the protest — that is, what demonstrators are actually protesting.

Demonstrators gather at the Oceti Sakowin campsite in North Dakota to protest the Dakota Access pipeline.
Source: David Goldman/AP

"A city, state or municipality can say, 'You can't block traffic if you're protesting,'" Snyder explained in an interview Wednesday. "That to me would be a reasonable time, place or manner restriction — the city or state has to make sure its roads function."

But harsher restrictions veer into murkier territory, Snyder said.

"Specifying 'by any means necessary' is really inflammatory language that suggests law enforcement has the right to commit unnecessary acts of violence against protesters," he said, referring to Tomes' proposed legislation. "While the city has the right under the Constitution to tell protesters not to block traffic, it doesn't give police license to just start beating people up."

As it turns out, it doesn't give drivers license to hit them with their cars, either.

"Tort law addresses the issue of a motorist injuring a person irrespective of what that person is doing," Synder explained. "If this bill is implying that if that person is a protester it's OK to hit them, that's a troubling message. What's more, it's unnecessary for a legislature to step in and address problems courts have addressed for centuries." 

If protesters are following the law — that is, they aren't trespassing, destroying property, assaulting a police officer or the like — they have the right to keep doing what they're doing without fear of punishment. 

"If what these state legislatures are trying to do is discourage otherwise lawful activity, that's deeply disturbing ... it's something protesters shouldn't concern themselves with," Snyder said. "In a sense, these bills violate the spirit of the Constitution."