In the months before and after the 2016 presidential election, protests relating to racial issues, women’s rights and political movements have become increasingly common. In fact, U.S. citizens set a record for the largest protest in the nation’s history at the 2017 Women’s March around the country just one day after President Donald Trump’s inauguration.
In response to the increasing number of demonstrations, legislators across the country have introduced bills limiting where protesters can demonstrate or increasing fines for participation in peaceful protests that turn violent. Unlike previous protest legislation that focused on demonstrations against specific causes or events, such as abortion or funerals, the bills introduced this year have taken a broader approach, said Jon Griffin, program principal with the National Conference of State Legislatures.
Legislation has been filed, or there are plans to file, in at least 18 states, with much of it focusing on the issue of traffic obstruction, Griffin said, a direct response to traffic-blocking techniques employed by groups such as Black Lives Matter. In Indiana, for example, Senate Bill 285, which is still pending before the House of Representatives, creates a study committee to look at the use of a police response “to a mass traffic obstruction.”
Similarly, a bill introduced in Iowa, Senate File 111, would subject protesters who block traffic to felony charges. Protesters blocking traffic in Florida would be subject to being charged with a misdemeanor of the second degree under Senate Bill 1096, which also would exempt motorists from liability for injuring or killing a person interfering with traffic under certain circumstances.
Although these bills were drafted with protesting specifically in mind, Griffin said legislation in other states doesn’t use the word “protest” at all, indicating that lawmakers are attempting to take a more comprehensive approach to the issue.
“They don’t match a common constitutional theme, so I think it depends state to state,” he said.
But some civil rights activists and Indiana attorneys question the logic behind such legislation, noting that often, obstructing traffic is an offense already punishable under the law. Rather than attempting to protect motorists, some protest advocates say SB 285 and similar legislation across the nation represent knee-jerk reactions to political demonstrations that challenge elected officials.
Katie Blair, director of advocacy for the American Civil Liberties Union of Indiana, described the original language in SB 285 allowing police to clear the roads by “any means necessary” as having a chilling effect on the First Amendment rights of protesters. While Sen. Jim Tomes, R-Wadesville, presented the bill as an effort to protect motorists’ right to drive, Blair said that explanation was nothing more than a cloak around the intent of the bill — suppressing certain political thoughts and demonstrations.
“Your right to drive doesn’t outweigh the First Amendment,” Blair said.
Tomes declined to comment for this story.
Widespread criticism ultimately led the General Assembly to assign SB 285 to a study committee, and Blair hopes having an “open and honest discussion” about the issue will lead lawmakers to see the legislation as an attempt to silence protesters. She rejected the notion that such legislation was even necessary, noting that no arrests were made during the Women’s March and, in general, recent protests have been peaceful.
But even if the protests weren’t peaceful and traffic obstructions were a legitimate issue, existing law makes legislation aimed at keeping protesters out of traffic unnecessary, said Scott Barnhart, a civil rights attorney and founding partner at Keffer Barnhart LLP in Indianapolis.
Under Indiana Code 35-44.1-2-13, “a person who recklessly, knowingly, or intentionally obstructs vehicular or pedestrian traffic commits obstruction of traffic, a Class B misdemeanor.” That means that if a law enforcement official observes an individual intentionally blocking traffic, that individual can already be arrested and charged, Barnhart said.
“To me, it’s unnecessary to be giving the authority twice to police to do something,” he said.
Like Blair, Barnhart has concerns about legislation aimed specifically at impeding protesters’ free speech rights afforded by both the First Amendment and Article 1, Section 9 of the Indiana Constitution, which prohibits laws that restrain “the free interchange of thought and opinion.”
Barnhart sees a corollary between the concept of SB 285 and legislation designed to curb aggressive panhandling on city streets. Courts have struck down such legislation on First Amendment grounds under the notion that certain areas, such as sidewalks, are forums for free speech. A 2015 7th Circuit Court of Appeals opinion, for example, found that an ordinance prohibiting panhandling in certain areas of Springfield, Wisconsin, amounted to unconstitutional content-based speech restriction. Open spaces on public property are generally understood to be purposed for free speech, Barnhart said.
“To have this option to have police acting in response to exercising free speech rights, to me that’s problematic,” he said.
Noting that protest bills in Indiana and other states have either been watered down or killed in the Legislature, Griffin said it’s too early to say whether the proposed legislation actually infringes on First Amendment rights. But here in Indiana, Barnhart sees possible violations of the state constitution that are also raising red flags.
Article 1, Section 9 already includes a caveat that holds “but for the abuse of that right (to free speech), every person shall be responsible.” Under that language, blocking traffic as part of a protest would be considered an abuse of the state constitutional right to free speech, Barnhart said, so the protester already would be considered in violation of a criminal statute.
Further, he is concerned police response to protests could begin to unduly infringe upon “the free interchange of thought and opinion,” as is protected in the state constitution.
If the recent wave of protest legislation is a direct result of the increase in nationwide demonstrations, Blair said it’s difficult to predict whether lawmakers will continue to study the issue if the number of protests declines.
Griffin thinks the issue is here to stay, but with a unique focus on the issues facing each individual state.
“There doesn’t seem to be uniform or boilerplate language,” Griffin said. “It seems to be an organic rising. It’s not like there’s somebody behind the scenes pushing this legislation.”•