Within the past 6-7 years there has been a quick proliferation of state legislation aimed at curbing freedom of expression by placing prosecutorial guardrails on protest movements. In Pen America’s “Arresting Dissent: Legislative Restrictions on the Right to Protest,” researchers analyzing state incursions on free speech via legislative channels found that there has been “an explosion of 116 state bills introduced since 2015—110 of which were introduced between 2017 and 2019 alone—that create new penalties or harsher sentences for protesters.”
Another instance that comes to mind that is particularly concerning that stems from a prosecuting agency rather than the state legislature is the Maricopa County Attorney’s Office scandal of wildly overcharging Black Lives Matter protesters. The MCAO filed gang charges against 15 protesters who were involved in an October 2020 protest and colluded with Phoenix police to aggressively prosecute protesters who were exercising their legal First Amendment rights.
Another instance of state-level retaliatory efforts to curtail freedom of expression through protesting can be found in so-called “critical infrastructure laws.” Jenna Ruddock explores in her 2019 article “Coming Down the Pipeline: First Amendment Challenges to State- Level "Critical Infrastructure" Trespass Laws” how these kinds of harsh trespassing laws have been employed in states that have seen protests stemming from the construction of natural gas pipelines.
Ruddock argued that these “statutes’ vagueness and their outsized penalties risk criminalizing protected speech and thus have an unconstitutional chilling effect on the legitimate exercise of free speech and free association by individuals and groups organizing to protest fossil fuel infrastructure development.”
These trends absolutely concern me, and I feel that they will only continue to grow in both their scope and vague nature lest some form of federal oversight or Supreme Court decision be handed down solidifying protests as legitimate free expression that cannot be curbed through state legislation. I don’t know if this is something that is feasible, however, given the political nature of the high court and Congress’ unwillingness to tackle free expression issues.
Is policy an appropriate avenue for regulating speech? I’m not sure as it can easily be warped by actors looking to curtail speech rather than protect legitimate free expression by legislating what is harmful or violent speech. In the case of these “critical infrastructure laws,” I know that some actions against harmful oil pipelines have been violent and destructive – but others have been nothing but peaceful. Regardless, these kinds of laws characterize both forms of expression as illegal and essentially parallel to one another.
Furthermore, Pen America’s report notes how proposed legislation aimed at curtailing free expression by way of protests can have a chilling effect even if the legislation is not adopted. “Even if such bills rarely become law, they promote the view that today’s protests should be viewed through the narrative of criminal disruption, not civic participation,” the researchers found.
Another concerning aspect of these kinds of anti-protest laws is that many of them involve imposing fees on protesters who are found “guilty” of violating the law. This is particularly harmful to individuals of lower socioeconomic status, reinforcing a financial hierarchy within our society that punishes those with low incomes for exercising their right to free expression.
ความคิดเห็น