Legislators in many states are drawing exactly the wrong lessons from the tragic events in Washington on Jan. 6. The U.S. Capitol riot was violent, with multiple deaths and well over 100 members of law enforcement suffering injuries. And yet state legislators are introducing bills that would limit peaceful protests, allegedly as a public safety measure.
Provisions like these deliberately strike at the heart of what it means to live in our democracy.
Legislation has been introduced in many states — including Arizona, Indiana, Mississippi, Nebraska, Rhode Island and Washington — but one of the worst and most restrictive bills is being championed by Florida Gov. Ron DeSantis. Rather than focus on the type of violent acts that we witnessed in Washington, DeSantis has proposed restrictions that would limit peaceful protests.
As the Supreme Court has explained, it is “through the exercise of these First Amendment rights” — “rather than through riot or revolution” — that our Constitution enables and empowers people “to bring about political, social, and economic change.” There is good reason to consider how we can prevent insurrections like the one at the Capitol. But instead, Florida’s bill would use the tragic events to dress in sheep’s clothing DeSantis’ wolfish intent to become the arbiter of free speech in Florida. Multiple provisions in the bill make that clear.
For example, the bill would eliminate the authority of local governments to issue their own permits for protests and demonstrations, create civil liability for cities that do not use aggressive law enforcement tactics to crack down on demonstrations and allow anyone who participates in a protest or a “public disturbance” involving three or more people to be charged with a felony for engaging in a “riot” if other members of the group cause property damage or injure another person. Provisions like these deliberately strike at the heart of what it means to live in our democracy.
The Constitution requires that any restriction on the right to protest be content-neutral and “narrowly tailored to serve a significant government interest.” That means that protest restrictions must treat all speech the same, regardless of its subject matter or viewpoint or the identity of the speaker, and they cannot burden substantially more speech than is necessary to serve the government’s stated purpose. That cannot be said of many of DeSantis’ proposals.
Stripping counties and cities of the authority to issue permits not only would contravene conservative principles of local government control; it would also shift this power entirely to the governor. It ignores precedent that says government officials cannot have unbridled discretion in issuing permits. As the Supreme Court has long recognized, “it is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups … by use of a statute providing a system of broad discretionary licensing power.” Granting the governor the ability to determine which causes should get protest permits would bestow upon him an unconstitutional authority that would easily allow him to censor viewpoints he dislikes.
Protest restrictions must treat all speech the same, regardless of its subject matter or viewpoint or the identity of the speaker.
In addition, DeSantis’ bill would allow anyone to be charged with a felony for committing a “riot” if the person “participates in” or “encourages” others to join “an assembly of three or more persons” and some faction of the group engages in “disorderly and violent conduct.” The mere threat of being charged with a felony for simply organizing or attending a protest would discourage people from associating with protests and organizations that engage in them in Florida. Provisions that would undermine the freedom to associate with others like this would fail judicial review. As the Supreme Court has made clear, “the right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”
Lastly, rather than make any attempt to foster a more democratic culture in Florida that tolerates dissonant speech and debate, the bill includes a legal defense for people who commit violent acts against protesters. The bill would create an “affirmative defense” — a way to absolve a person of legal liability — in civil lawsuits for anyone who damages the property of, injures or kills a person who is participating in an “unlawful assembly.” This would be true even if the agitator specifically intends to cause harm, for instance, by accelerating a car into a crowd. Last year alone, there were over 100 documented incidents across the country of motorists’ driving into protesters, often at Black Lives Matter rallies — a problem that the bill would only worsen.
The DeSantis bill has set the drumbeat to a disturbing march of overly broad restrictions against the right to protest. For instance, legislators in Mississippi have filed one bill that would imprison someone for up to two years if that person “participates in” an assembly of 10 or more people who “disobey or refuse to heed” a lawful order to disperse, as well as another bill that would allow business owners to use lethal force against protesters who violate the law, even if no lives are at risk and no property is damaged. Washington lawmakers have introduced legislation that would imprison people for up to five years if they participate in groups of four or more people found guilty of “obstructing a highway.” Nebraska legislators have introduced a bill that would even jail someone for up to six months if that person “obstruct[s] or interfere[s] with [a] meeting, procession, or gathering,” presumably of lawmakers.
One of the most obvious lessons from the siege of the Capitol and the congressional debate that followed is that our country’s divisions remain deep and fierce. Undermining the constitutional right to peaceably assemble and protest would only drive more disillusioned Americans into the arms of the mob.
There is no need for laws to limit peaceful protests, in Florida or any other state. What occurred in Washington on Jan. 6 was the antithesis of the freedom of speech protected by the First Amendment. The violence there should not be used as an excuse to thwart lawful assemblies and protests.