Jurisprudence

Why the GOP War Against Protesters Won’t Succeed

Protesters march on street holding signs in downtown Miami on June 12, 2020, during a demonstration over the death of George Floyd.
Protesters march in downtown Miami last summer, during a demonstration over the death of George Floyd. Chandan Khanna/AFP via Getty Images

The first of a new wave of anti-protest laws to reach federal court has already hit a major roadblock. Last week, U.S. District Judge Mark Walker issued a preliminary injunction temporarily barring Florida Gov. Ron DeSantis and three Florida sheriffs (plus their officers) from enforcing part of the state’s anti-riot law, HB 1.

HB 1 is just one of dozens of anti-protest laws enacted or proposed by Republican lawmakers following last summer’s massive Black Lives Matter protests. But if Judge Walker’s order is any indication, many of these laws aren’t built to last.

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Eight states enacted such statutes, and many more legislatures passed (pending approval by the governor) or proposed similar laws. This year alone, Republican lawmakers in 34 states have introduced more than 80 anti-protest bills. This onslaught of restrictive legislation accelerated a trend that began when Donald Trump took office. Since January 2017, states have enacted 36 bills curbing the right of assembly.

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The Florida law generated substantial controversy upon its passage and enactment in April. At a ceremonial press conference and bill signing, DeSantis boasted that “if you look at the breadth of this particular piece of legislation, it is the strongest anti-rioting, pro-law enforcement piece of legislation in the country. There’s just nothing even close.”

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That breadth likely renders HB 1 partially unconstitutional. The law’s challengers, a group of Black-led advocacy organizations, sought temporary relief enjoining enforcement of the law while the case proceeds. Walker obliged, finding that the groups were likely to succeed on the merits of their constitutional claims. Specifically, he ruled that HB 1’s broad, vague language probably violates the First Amendment—by criminalizing too much protected protest activity—and the 14th Amendment—by failing to give protesters fair notice of what exactly it criminalizes.

The offending language is found in the law’s new definition of riot, which provides that “[a] person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct,” which results in injury, property damage, or imminent danger of either.

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Walker deemed this language constitutionally insufficient because it leaves unclear what it means to “participate” and whether a participant must share an intent to be violent or disorderly. In other words, protesters could plausibly be arrested under the definition for continuing to peacefully protest (or even for simply failing to leave) when others in the crowd became destructive. Because that looming threat prevented the plaintiff organizations from attending and organizing protests, Walker granted them immediate relief.

DeSantis’ implication that HB 1 goes drastically further than its counterparts in other states is questionable. Several states have proposed expanded definitions of terms like “riot” or “unlawful assembly.” In Wisconsin, for example, the state Legislature has proposed a law that would criminalize mere attendance at a “riot,” defined as “a public disturbance involving an unlawful assembly” and an act or threat of violence. At a committee debate over the bill last month, even some Republicans raised concerns that the bill would cover peaceful protest activity.

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Similar legislation in other states is on ice, at least for now. A Georgia bill that would have expanded the definition of “unlawful assembly” failed to pass, though legislators could revive it in future sessions (as a state Senate committee did earlier this year). And in Alabama, a bill broadly redefining “riot” passed the state House of Representatives but also ultimately failed. An early version of the bill would have criminalized anything that “substantially obstructs a law enforcement or other government function.”

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Walker’s decision is not binding on other courts considering other states’ laws. But his reasoning might be persuasive to courts facing vagueness and overbreadth challenges to analogous definitions of “riot” and “unlawful assembly.” If so, proposals like Wisconsin’s, Georgia’s, and Alabama’s could be dead on arrival should they ever become law.

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Walker’s reasoning might also provide guidance to courts considering other types of anti-protest provisions. One basic concern underlying his analysis is the threat that “protestors could be held criminally liable for others’ violent acts.” That concern should extend to restrictions beyond those redefining statutory terms.

Consider an Oklahoma law set to take effect in November. HB 1674, a wide-ranging anti-protest measure signed by Gov. Kevin Stitt, confers organizational liability to any group found to be “a conspirator” of anyone convicted of various riot-related crimes as defined in the law. In its federal court complaint challenging that provision, the Oklahoma NAACP alleges that the bill subjects groups to crippling liability for conspiring to commit minor crimes that are staples of typical protests—things like violating noise ordinances, jaywalking, or displaying unsanctioned flags on government property—if any of the group’s protester-conspirators also engage in riotous behavior unapproved by the group. If the court agrees, HB 1674 will likely meet the same fate as HB 1.

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Two higher court cases from last year shed light on the larger tension between protected First Amendment protest activity and the criminal behavior of other protesters. The 4th U.S. Circuit Court of Appeals became the first federal appellate court to hold that portions of the federal Anti-Riot Act violate the First Amendment. The court upheld the convictions under the act of two participants in the 2017 “Unite the Right” rally in Charlottesville, Virginia. But it held that certain provisions of the act—those outlawing speech that would “encourage” or “promote” a riot, and speech “urging” others to riot or “involving” mere advocacy of violence—were unconstitutionally overbroad because they encompassed too much protected speech.

The act went too far because it proscribed speech that would not directly facilitate crimes committed by others. Several months later, the Supreme Court punted on the related issue of whether a protest organizer who directs protesters to occupy a highway can be held civilly liable for unsanctioned violence subsequently committed by protesters. But the court did vacate the 5th Circuit’s controversial opinion that had left Black Lives Matter activist DeRay McKesson personally on the hook for violence committed by an unknown assailant at the protest that McKesson led on a Baton Rouge highway. And the court has expressly rejected comparable claims for civil liability in the past.

Together, these decisions along with Walker’s offer reason for optimism that Republican officials’ concerted assault on protest rights will not be sustained. Such optimism could be fleeting. DeSantis has already indicated his intent to appeal Walker’s order and expressed confidence that the conservative-leaning 11th U.S. Circuit Court of Appeals will rule in his favor. And the Supreme Court’s long history of hostility toward protesters looms large.

But for now, Walker’s decision is a refreshing reminder that the First Amendment protects protests “with particular force.

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