We’ve all been really focused on the Federal government – rightly so – but we can’t lose track of what’s happening on a state level. And shit is going down on the state level. (I’m also fairly certain the state governments want to fly under the radar on this one – not only due to popularity issues, but also due to the fact that they’re blatantly disregarding our constitutional protections.)
First, you need to know a little about how freedom of speech under the First Amendment works. (If you already know a little about how freedom of speech works, feel free to skip ahead.) The most important thing to remember is that it only applies to government censorship of speech. Dude down the block can tell you to stuff it. Your [private] employer can fire you for saying something it disapproves of. Twitter can deactivate your account and keep your tweets off the internet (has anyone tried to make this happen with Trump? Although, those tweets played a crucial role in the 9th Circuit decision, so maybe better not). Remember when that Duck Dynasty guy got kicked off the show? That was also totally fine. But the government telling you to stop expressing yourself is another kettle of fish entirely. The short answer is, it can’t stop you; the First Amendment says, “Congress shall make no law . . . abridging the freedom of speech.” The long answer is…well…longer: it can in a few situations, with some limitations. Here’s a really abridged summary.
Time, Place, and Manner Restrictions (So…for example, a law saying that you can’t protest at 5:00pm on a Friday, in front of a particular government building, while hollering through a megaphone would be a time, place, and manner restriction):
- Courts scrutinize such restrictions at a lower level than they do speech content restrictions because the laws are “content-neutral.” If the law serves a “significant government interest” and also allows ample alternative channels of communication, they’re probably good to go.
- BUT there is a distinction between public spaces that have traditionally been used as public forums and spaces that are limited public forums. Public forums are harder to restrict. Limited public forums are slightly easier to restrict. Fair grounds, for example, are limited public forums, as are most public parks. Sidewalks and public streets, however, are public forums. To this end, the government (state or federal) cannot simply pass a law that prohibits all canvassing, solicitation, or protesting on sidewalks or public streets.
Content-based Restrictions (Just what it sounds like – passing a law that says you can’t say or communicate certain things):
- Courts use a higher level of scrutiny when examining this type of law, i.e. they ask “Does this serve a compelling state interest and is it narrowly tailored to achieve that interest?” The government has the burden of proof and really has to prove that the law in question is an absolute necessity. Basically, the presumption is that the law is unconstitutional unless the government can show otherwise. It’s a high bar.
- TL;DR: It’s really fucking hard for the government to get away with telling people that they can’t say certain things.
BUT certain types of content may be restricted, including:
- True threats;
- Fighting words (inciting violence, etc. but note that things like burning a cross during a political rally are constitutionally protected speech);
- Obscenity (three-factor test: (1) the average person, applying contemporary community standards, would find that the material appeal to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual content; and (3) it lacks serious literary, artistic, political, or scientific value.);
- Clear and present danger (does the speech/activity pose a clear and present danger to a legitimate government interest? For example, distributing pamphlets that urge insubordination among members of the military is not protected speech.)
BUT then again, lots of types of expressive (maybe even offensive) speech ARE protected, including:
- Symbolic speech (for example, wearing black armbands at school to protest the Vietnam war was determined to be constitutional despite its causing discomfort among students and teachers);
- Burning the American flag;
- Wearing clothing with an offensive message or profanity on it ( for example, a leather jacket that said “Fuck the Draft” in the public corridors of a courthouse);
- Nudity or otherwise non-obscene erotic conduct;
- BASICALLY, a good rule of thumb to remember is that “unpopular” doesn’t mean that it’s okay to censor.
Now, onto the original point of this post!
At least ten states are making moves to ban or otherwise make more difficult peaceful protests. Definitely uncool. And they’re not all necessarily the states you’d expect, either, which makes this all the more important (because no one is scrutinizing some of these states). If you’re any kind of pro-Constitutional rights person, this should be really upsetting to you.
- Minnesota: The bill would raise fines dramatically for freeway protests and would allow prosecutors to seek a full year of jail time for protestors blocking a highway.
- Washington: Washington really amps up the hyperbole by trying to reclassify civil disobedience protests deemed “economic terrorism” as a felony.
- Michigan: Lawmakers introduced and then shelved an anti-picketing law that would give businesses a leg-up to sue individual protestors for their actions.
- Iowa: A Republican lawmaker has promised to introduce legislation that will crack down on highway protests.
- North Dakota: Conservative lawmakers are pushing a bill that would allow motorists to run over and kill protestors as long as the collision was “clearly accidental.” (Come again?)
- Indiana: Police may use “any means necessary” to clear protestors off of a roadway. (Um. Yikes?)
- Virginia: This one is broad and vague. The bill would increase penalties for people who engage in an “unlawful assembly” after “having been lawfully warned to disperse.” It also ups the crime to a class 1 misdemeanor, meaning that protestors could expect to be in jail for up to a year as well as pay a fine of up to $2,500.
- Colorado: This one would result in a HUGE penalty increase for environmental protestors – tampering with equipment would be reclassified from a misdemeanor to a class 6 felony (punished by up to 18 months in jail and a fine of up to $100,000.)
- Missouri: Bill would make it a crime for anyone participating in an “unlawful assembly” (again, vague language with some seriously unconstitutional overtones; it gets worse) to intentionally conceal “his or her identity by the means of a robe, mask, or other disguise.” So they’re policing expression and wardrobe. There is a section that excludes religious coverings, but a statement on the legislature’s website states that a “hood” is included in criminalized coverings.
- North Carolina: After Pat McCrory got chased down an alley by people [nonviolently] heckling him, a Republican lawmaker wants to pass legislation that will criminalize protestors who heckle their elected representatives. Because who are the citizens to criticize the people who are not doing the job they were elected to do?! (I wouldn’t expect anything else to come out of this state, tbh.)
Many, if not all, implicate the First Amendment and suggest some (if not full-on, outright) infringement on constitutionally protected speech. They aren’t in place yet and may never be in place but, in my opinion, it’s worthwhile to stay on top of who’s doing what, particularly when it has a potential impact on your personal rights and freedoms. So keep your ears to the ground, people. Make sure you know what your state is up to.
**EDIT AS OF APRIL 2, 2017**
There are now 19 states threatening protesters’ rights and the UN has said that Americans’ right to protest is under threat under Trump.
WaPo has an article (though it’s missing a lot of the critical details):