State Anti-Protest Laws and Their Constitutional Implications
In the past several years, state legislatures across the country have passed laws designed to curb the rights of political protesters and increase their exposure to criminal penalties. Though a few members of Congress have introduced federal anti-protest bills, none has yet been signed into law, making state capitols the primary arena for this trend. As of September, 20 state legislatures have enacted 36 laws since January 2017 that penalized different forms of protest-adjacent activity. Another 25 state legislatures have considered (or are currently debating) similar bills with varying levels of intensity. This tracker created and maintained by the International Center for Not-For-Profit Law provides an up-to-date record of proposed and enacted anti-protest legislation at both the state and federal levels.
Recent media coverage of this trend has tended to characterize such laws as a response to the Black Lives Matter protests that followed the murder of George Floyd in the summer of 2020. While state legislators did introduce—and sometimes enacted—a flurry of anti-protest bills in the aftermath of the Black Lives Matter protests, those laws were only the latest, most prominent example of legislative backlash against popular protest movements around the country. The first wave of laws were proposed and passed back in 2017, with more following in each subsequent year, many in response to the protests against the Keystone and Dakota Access pipelines. Sponsors of anti-protest bills have painted different actors, usually Black Lives Matter supporters or indigenous and environmental activists opposing oil pipelines, as threats to public safety or important commercial interests warranting the criminal penalties contained in such legislation.
The 36 laws passed so far fall into two rough categories: first, laws that impose penalties on protesters who target oil pipelines and other forms of energy infrastructure; and second, more general laws that affect protesters more broadly. We address each in turn, highlighting common themes and pointing to specific laws that are typical of each category. As many commentators have noted, these laws raise profound constitutional questions regarding the First Amendment rights of protesters. We provide a high-level overview of those concerns and the likely outcome of First Amendment challenges to those laws in court. Finally, we briefly discuss trends among pending bills that are currently under consideration in various state capitols.
Critical Infrastructure Laws
Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin have all passed laws specifically targeting environmental protests. Though some states use different terms—Wisconsin’s law covers “energy providers,” while most others, like Louisiana’s, refer to “critical infrastructure”—the purpose is largely the same: to impose or increase criminal penalties against protesters engaged in environmental activism.
As the Brennan Center has noted, state critical infrastructure laws borrow from the federal concept of critical infrastructure: segments of the economy “so vital to the United States that their incapacitation or destruction would have a debilitating effect” on national security and public safety, thereby deserving enhanced legislative protection. The federal government has designated 16 different industries as “critical infrastructure,” but the state laws focus narrowly on the energy sector. Many commentators argue that the state emphasis on environmental protesters stems directly from legislative concern over protests that have the potential to derail planned or ongoing energy projects—with the demonstrations against the Dakota Access Pipeline, especially those conducted by members of the Standing Rock Sioux Tribe in North Dakota, being the most high-profile example. Further, it is not a coincidence that many of the states that have passed critical infrastructure laws, such as North Dakota, Oklahoma, Louisiana and West Virginia, have large oil, coal or gas industries.
At a high level, state critical infrastructure laws typically elevate “damage” to, “interference” with, or trespassing on a critical infrastructure facility to a felony offense. In nearly every state, criminal trespassing is typically a misdemeanor, carrying a relatively light punishment of jail time or a fine. Critical infrastructure laws raise the stakes dramatically. Arkansas’s law renders entering or remaining on a critical infrastructure site a Class D felony, punishable by a maximum of six years in prison and a $10,000 fine. Damaging a critical infrastructure site is a Class B felony and punishable by up to 20 years in prison and a $15,000 fine. That level of severity is typical; North Dakota’s law criminalizes the “intentional interruption” of a critical infrastructure facility (which extends to interfering with pipeline construction) as a Class C felony, punishable by a maximum of five years in prison and a fine of $10,000. Indiana’s statute creates the offense of “criminal infrastructure facility trespass,” a level 6 felony punishable by up to 30 months in prison. Not all states impose such severe penalties, however. In Montana, for example, trespass on a critical infrastructure facility is punishable by a maximum of six months in jail or a $1,500 fine. But the majority of critical infrastructure laws impose steep punishments for a range of offenses relating to energy facilities.
Beyond imposing penalties on protesters, critical infrastructure laws extend to cover other individuals and even groups that facilitated the conduct at issue. The Montana statute states that “an organization found to be in a conspiracy” with defendants convicted under the critical infrastructure law is liable for fines up to 10 times the amount imposed on the defendants themselves. Organizations in North Dakota that are found to have conspired with defendants to violate the critical infrastructure law must pay the same amount imposed as a fine on each individual, with the total amount not to exceed $100,000. In Indiana, an individual found to have conspired with a protester whose actions fall under the law faces a maximum fine of $100,000.
Finally, though the focus of critical infrastructure laws is criminal liability, some impose civil penalties as well. The Ohio statute, for example, allows owners or operators of critical infrastructure facilities to sue protesters who damage their property and recover “compensatory damages equal to the replacement value of the damaged property.” Moreover, organizations can be found vicariously liable under the law for such damage if they “directed, authorized, facilitated, or encouraged” the protester to commit the offense or if they paid them to do so. “Encouraged” is not defined in the statute. Even though the provisions of each statute vary, critical infrastructure laws are uniform in their purpose: to increase the criminal and civil exposure of environmental protesters and, often, the organizations that support them.
General Anti-Protest Laws
In addition to critical infrastructure-specific statutes, 11 states have passed laws that seek to restrict protest activities more generally: Alabama, Arkansas (two different statutes), Florida, Iowa, Missouri, North Dakota (three different statutes), Oklahoma (two different statutes), South Dakota (three different statutes), Tennessee (three different statutes), Texas, Utah and West Virginia.
These laws primarily target rioting, blocking traffic and organizational support for protests. While they vary widely, the common trends among these statutes are expanded definitions of “riot” and increased severity of the punishments for crimes such as rioting, disrupting traffic, trespassing on public property and defacing public monuments.
In particular, several recent laws have made blocking traffic during protests more serious offenses. Arkansas, Iowa, Oklahoma, South Dakota and Tennessee all passed statutes increasing the maximum penalty to one year in jail for people who obstruct sidewalks and streets. In Iowa, if the obstruction occurs during a riot, the offense becomes a Class D felony and the maximum penalty increases to five years in prison and a $7,500 fine. Two states, Iowa and Oklahoma, grant civil and/or criminal immunity to drivers who strike protesters with their cars. The Iowa law grants civil immunity to drivers who exercise due care and injure “another person who is participating in a protest, demonstration, riot, or unlawful assembly or who is engaging in disorderly conduct and is blocking traffic.” The Oklahoma law grants both civil and criminal immunity to drivers when the protesters have “approached and surrounded” the driver while engaged in unlawful activity, provided the driver is making a “reasonable effort to escape from the unlawful activity.”
With regard to rioting, one Arkansas statute created a new mandatory minimum sentence of 30 days in jail for rioting, defined as “knowingly engag[ing] in tumultuous or violent conduct” with two or more persons that creates “ a substantial risk of causing public alarm, disrupting the performance of a government function, or damaging or injuring property or a person.” Public alarm is not defined in the statute. A similar Tennessee statute increased the mandatory minimum sentence for rioting to 45 days in jail. The Iowa law goes further, increasing the penalty for “riot” from an aggravated misdemeanor to a Class D felony, which carries a punishment of up to five years in jail and a $7,500 fine. Under the law, a riot is “three or more persons assembled together in a violent and disturbing manner and any one of them uses unlawful force against other persons or property.”
The Arkansas statute also elevates “inciting riot”—knowingly urging others through speech or conduct to participate in a riot where there is “a clear and present danger” that they will participate in a riot or giving commands or instructions in furtherance of a riot—to a Class D felony if a person is physically injured or property is damaged as a result of the incitement. Neither “urging” nor the scope of “clear and present danger” is defined. Among the most expansive and punitive anti-protest statutes, the Florida anti-rioting law now defines a riot as three or more persons “acting with a common intent to assist each other in violent and disorderly conduct that results in injury to another person, damage to property, or imminent danger of injury to another person or damage to property.” A riot is a third degree felony punishable by up to five years in jail. Inciting a riot, defined as “willfully incit[ing] another person to participate in a riot, resulting in a riot or imminent danger of a riot,” is also a third degree felony punishable by up to five years in jail; incitement is not defined in the statute. Additionally, a riot with 25 or more persons or that “endangers the safe movement of a vehicle,” is classified as an “aggravated riot,” a second degree felony punishable by up to 15 years in prison. Endangering the safe movement of a vehicle is not defined in the law. In North Dakota, participating in a riot involving more than 100 people is a Class B felony, punishable by up to 10 years in prison and a $20,000 fine. Though these state laws vary, the clear trend with such legislation is to increase criminal exposure and penalties for conduct during protests.
First Amendment Concerns
Many of these laws could be subject to constitutional challenges on grounds of vagueness, where it is unclear what speech or conduct is prohibited, or overbreadth, where more speech or conduct protected by the First Amendment is prohibited than is necessary to achieve the government’s compelling interests. In addition to First Amendment challenges, these laws will likely face challenges under state constitutional law and other state and federal laws, but those additional issues are beyond the scope of this post. As noted above, key words or phrases in these critical infrastructure and anti-protest or anti-riot laws are often left undefined, which leave open serious First Amendment implications, specifically for the rights of freedom of speech and freedom of assembly. South Dakota serves as a good example of the potential problems created by such legislation. In March 2019, South Dakota enacted a statute that expanded civil liability for protesters and individuals and organizations that fund protests. Like the critical infrastructure laws discussed above, this law created civil liability for a person or organization that “does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.” Neither “advice” nor “encouragement” was defined. A federal district court held many of the statute’s provisions, including this one, unconstitutional. Specifically, the court found that much of the statute was overbroad and vague, punishing expression beyond that which is essential to the punishment of violence during a riot. Moreover, the court emphasized that much of the statute failed to meet the standard set forth by the Supreme Court in Brandenburg v. Ohio, which permits the sanctioning of speech that advocates violence or lawless action only where the speaker intends for the speech to result in such violence or lawless action and where imminent violence or lawless action is likely to occur.
The following year, the South Dakota legislature learned from its prior experience in crafting a new anti-riot bill. The revised statute, which went into effect in March 2020, redefined “riot” as “any intentional use of force or violence by three or more persons, acting together and without authority of law, to cause any injury to any person or any damage to property.” It also created the new felony of “incitement to riot,” punishable by up to five years in prison and a $10,000 fine. Critically, the statute defines incitement as conduct that “urges three or more people ... to use force or violence to cause” personal injury or property damage, where “the force or violence is imminent and the urging is likely to incite or produce the force or violence.” Furthermore, the bill clarifies that “urging” includes “instigating, inciting, or directing” but expressly excludes “oral or written advocacy of ideas or expression of belief that does not urge ... imminent force or violence.” This language hews closely to the Brandenburg standard, making it more likely to survive a First Amendment challenge.
However, many of the other state statutes listed above do not include such carefully crafted language that will limit the likelihood of First Amendment challenges. Both critical infrastructure and anti-rioting statutes, like those in Ohio, Arkansas, and Florida, fail to define key words or phrases such as “public alarm,” “clear and present danger,” “incitement,” “encouraging” and “urging.” South Dakota’s 2019 loss in federal court demonstrates the importance of defining key terms narrowly and in line with established First Amendment doctrine in order to survive constitutional challenges. For example, anti-rioting statutes that punish blocking people and cars from using sidewalks and streets during spontaneous or unauthorized protests could face overbreadth challenges under the First Amendment, because sidewalks and streets are quintessential public forums, where the government’s ability to restrict the exercise of freedom of speech and assembly is most limited. Likewise, critical infrastructure laws that fail to clarify whether they apply only to land privately owned, or also to public land adjacent to the infrastructure, may be subject to First Amendment challenges. In fact, anti-rioting statutes, both newly enacted and long-standing, are facing such challenges on First Amendment grounds in Oklahoma, Texas and Florida. In September, a federal district court judge granted a preliminary injunction to prevent the Florida law from being enforced, holding that the law was unconstitutionally vague and overbroad. Key to the judge’s ruling, the Florida law failed to define the scope of a “riot,” leaving peaceful participants in a demonstration that turns violent open to prosecution in violation of the First Amendment. The state is appealing that decision. Critical infrastructure laws are similarly facing First Amendment challenges in Texas and Louisiana. A federal judge in Louisiana allowed the challenge, alleging the state’s law is unconstitutionally vague and overbroad, to proceed after protesters against the Bayou Bridge pipeline were prosecuted for boating in public waters bordering the pipeline. The outcomes of these cases could indicate the likelihood of success of future First Amendment challenges to similar laws in other states.
Pending Legislation and Future Developments
The number of anti-protest laws is almost certainly likely to grow in the coming years. There are currently 51 bills pending in 20 different state legislatures. Some, of course, are more likely to become law than others; of those 51, nine (one in Georgia, one in Indiana, one in New Hampshire, two in Ohio, three in Oklahoma, and one in Texas) have been passed by one house of a state legislature.
Some of these pending bills go beyond existing anti-protest laws. A bill approved by the Ohio House of Representatives would criminalize throwing objects “at or onto” police officers with the intent to distract them. It would also prohibit placing objects in front of police officers that would confine them to a specific area and thereby prevent them from reaching a person outside of that area. Others, like those in North Carolina and Georgia, follow the lines of existing anti-protest legislation and would impose heightened penalties for rioting or inciting riots.
Legislation targeting protests is far from a new phenomenon in American politics. As a compromise to convince some conservative senators to vote for passage of the landmark 1968 Civil Rights Act, that omnibus package included the Anti-Riot Act—provisions criminalizing the use of interstate commerce with the intent to incite others to riot. The Anti-Riot Act is colloquially called the “H. Rap Brown law,” after the civil rights activist charged under the law in 1967 as part of the FBI’s attempt to neutralize leaders of the movement. The Anti-Riot Act had gone unchallenged since the 1970s until two recent cases involving far-right protesters prosecuted under the act. The U.S. Courts of Appeals for the Ninth and the Fourth Circuits found parts of the act to be unconstitutionally overbroad in criminalizing protected speech and severed them. These recent attempts by state governments to pare back the rights of protesters will likely face—and in some cases fail to survive—similar constitutional challenges by defendant protesters.
The defining feature of recent anti-protest laws, however, is that they are the products of state legislatures, not the federal government. Therefore, though they share common themes, they differ in their provisions and exact language. The likelihood of success for litigants who raise First Amendment challenges to such legislation will therefore depend on the provision of the bills at issue in specific cases. There is no one-size-fits-all answer as to the constitutionality of state anti-protest laws. These laws will be challenged individually, and the constitutionality—and thus the efficacy—of the more far-reaching provisions will be determined on a case-by-case basis in the months and years to come.
Rachael Hanna is a law clerk at Morrison & Foerster. This piece was written prior to her joining the firm.