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“One has a moral responsibility to disobey unjust laws.”
— Martin Luther King Jr.
“Protest beyond the law is not a departure from democracy; it is absolutely essential to it.”
— Howard Zinn
We fought the Revolutionary War against Great Britain to obtain freedom from an oppressive monarch. We enshrined freedom of speech as the first among equals in our Bill of Rights. To this day, Americans take pride in the fact that we have a constitutional right to free speech, something that does not exist even in the United Kingdom. Yet, to many, the ultimate symbol of unfettered speech may be the Speaker’s Corner in Hyde Park in London. Not by constitution, or even by statute, but by tradition, anyone can show up at Speaker’s Corner and speak on any topic.
I go down to Speaker’s Corner I’m thunderstruck
They got free speech, tourists, police in trucks
Two men say they’re Jesus one of them must be wrong
There’s a protest singer singing a protest song
— Dire Straits, “Industrial Disease”
How has free speech and the right to protest fared in our constitutional system? Courts have often permitted restrictions on speech, citing a federal or state legislature’s ability to restrict the “time, place, and manner” of speech. Protests are not allowed, for example, on the broad plaza in front of the U.S. Supreme Court.1
Justice Oliver Wendell Holmes Jr. famously wrote in Schenck v. United States2 that the First Amendment does not protect the right to shout “fire” in a crowded theater, and held that speech could be restricted if it presents a “clear and present danger” of resulting in the commission of a crime. Schenck upheld the criminal convictions of pamphleteers urging resistance to the military draft.
Obscenity laws have been used to restrict speech, even though one person’s obscenity is another person’s speech. In Jacobellis v. Ohio,3 the Supreme Court reversed the conviction of a theater owner in Cleveland who had shown the Louis Malle film “The Lovers (Les Amants),” but the case is remembered for the Court’s inability to define obscenity. That inability was starkly illustrated by Justice Potter Stewart’s concurrence, in which he wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”4
Yet, despite finding plenty to criticize in our First Amendment jurisprudence, free speech has largely remained alive and well in this country, throughout even the most turbulent times in its history. It can be fairly debated whether that is because, like the Brits, we have a tradition of free speech, or whether it is because, in addition, we have afforded it constitutional protection and have the Supreme Court as its ultimate guardian.
But the fact of the matter is that for 240 years our nation has been known as a place that values speech and dissent, free assembly, and protest. An engaged citizenry sitting at lunch counters, riding buses, marching across a bridge in Alabama, and marching on Washington spurred dramatic advances in civil rights. People taking over college campuses and spilling into the streets ended a divisive war. Gay and straight New Yorkers protesting at a bar in Greenwich Village started something that culminated decades later with gays serving openly in the military and lawfully marrying.
It is with this rich history in mind that I turn to the present state of our country. We have just elected a president who has ardent supporters, but who also entered office with the highest negative ratings of any president in history. Our politics are charged and divided. With a greater share of citizens getting their news from, and reading opinions by, people who share their own political bent, we suffer from confirmation bias that only causes the divisions to grow. We have crossed into a world where “fake news” competes with “alternative facts.” We not only disagree with each other about the conclusions we should draw from the facts before us, but also we cannot even agree with each other on what the facts are.
In this environment, the need for protest is at its greatest. President John F. Kennedy once said: “Those who make peaceful revolution impossible will make violent revolution inevitable.” We need public protest as a peaceful outlet. We need it as a primal scream. We need it to force those who are not like-minded to pay attention, to recognize there are people on the other side of the debate, and, maybe, just maybe, to reach people on the other side and move them, even if only just a little.
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From Ferguson and Black Lives Matters, to the Dakota Pipeline protests, to the Women’s March on Washington, people in record numbers have recognized and acted on the need to protest. Yet, at a time when the need for public dissent may be at its greatest, protest and free speech have never been more under attack. Indeed, the attack seems to be a direct reaction to these protests.
Laws and Bills Purportedly Responding to the Dakota Pipeline Protests
North Dakota, home of the Dakota Pipeline protests, recently enacted a law shielding from liability a driver of a motor vehicle who kills or injures someone “obstructing vehicular traffic,” even if the driver was negligent. A sponsor of the bill, state Rep. Keith Kempenich, defended the law by stating, “If you [protesters] stay off the roadway, this would never be an issue.”
North Dakota is not alone. In Tennessee, state Rep. Matthew Hill has introduced a bill that says if a driver hits a protester who is blocking traffic on a public right-of-way, as long as the driver did not act intentionally, the driver would be immune from civil liability for the demonstrator’s injuries. In Florida, Senate Bill 1096 is entitled “Obstructing of Traffic During a Protest or Demonstration.” Like the North Dakota law and the Tennessee bill, this legislation would exempt a motor vehicle operator from liability for the injury or death of a person who is obstructing or interfering with traffic.
The Florida bill also establishes criminal penalties for anyone obstructing or interfering with traffic during a protest or demonstration. Similarly, in Iowa, the state legislature has pending before it a bill that would make intentionally loitering on or blocking a highway, currently subject to a misdemeanor nuisance charge, a felony carrying up to five years’ imprisonment. In Mississippi, Senate Bill 2730 converts obstructing a road or highway, presently a misdemeanor subject to one week in prison, to a felony if it constitutes an “intentional act of malice,” which is defined to include “a person sitting, standing or lying in a public road or highway that would impede or hinder the passage of emergency vehicles.” As with the Iowa bill, the Mississippi felony would carry up to five years’ imprisonment.
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South Dakota has a pending bill that would clarify that the governor’s emergency response authority applies to potentially destructive protests and makes it a crime to obstruct highways. Minnesota has pending proposed legislation to make obstructing a highway, currently a misdemeanor carrying up to 90 days in jail, a gross misdemeanor carrying up to one year in jail. The Minnesota bill also allows cities to sue protestors for the cost of policing demonstrations.
Rep. Scott Biggs of Oklahoma has introduced House Bill 1121 in his state. It establishes a term of up to 10 years in prison and up to $100,000 in fines for individuals involved in trespass against “critical infrastructure.” Facilities covered by the law would include refineries, electric generation and transmission facilities, natural gas processing and transportation facilities, telecommunications facilities, crude oil storage and transportation facilities, and certain manufacturing plants. Biggs told the House Judiciary Committee on Criminal Justice and Corrections that the bill was prompted by oil and gas industry concerns arising from the Dakota Access Pipeline protests. The bill specifies the three levels of trespass it covers. The first, a misdemeanor, would be punishable by up to six months in a county jail and a fine of up to $1,000. The second, for “intent … to willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility,” would be a felony punishable by up to one year in prison and up to a $10,000 fine. The third category, for willful destruction, would also be a felony, but would be punishable by up to 10 years in prison and up to a $100,000 fine.
Indiana legislators have taken an even more direct approach by introducing a bill that would empower police to remove protesters blocking traffic using “any means necessary.” Critics have called the legislation the “block traffic and you die” bill.
Proposed Laws Purportedly Responding to the Post-Ferguson Protests
A Missouri state lawmaker wants to make it illegal to wear a mask or a disguise during an unlawful protest. Rep. Don Phillips says he was inspired by the protests in Ferguson. “Most people aren’t going to wear a mask or a hood over their head if they’re lawfully out there.” The bill would make it a crime to conceal one’s identity with a mask, robe, or other disguise while committing the crime of unlawful assembly or rioting.
Arizona Senate Bill 1142 expands the state’s racketeering laws, now aimed at organized crime, to also include “rioting,” which is defined to include actions that result in damage to the property of others. By including rioting in racketeering laws, the bill would permit police to arrest those who plan or participate in protests and seek asset forfeiture from any planner or protester if anyone participating in the protest causes property damage.
Rep. Kim Thatcher of Oregon has introduced a bill that would require community colleges and public universities to expel students found guilty of committing crimes during a riot.
The state of Washington’s “Preventing Economic Terrorism Act” creates a new crime called “economic terrorism.” It criminalizes, and designates as a felony, illegal protests aimed at causing economic damage and targets the unlawful disruption of transportation and commerce.
Georgia Senate Bill 160 would impose mandatory minimum prison sentences for criminals convicted of aggravated assault and aggravated battery against a public safety officer. Dubbed the “Back the Badge Act of 2017,” it broadens the definition of a public safety officer to include, for example, a firefighter or emergency health worker. It allows juveniles to be tried as adults if charged with aggravated assault with a firearm or aggravated battery against a public safety officer. The bill creates a new felony offense for someone convicted of throwing bodily fluids on an officer. Finally, it increases the penalty for obstructing highways, streets, sidewalks or other public passages to a misdemeanor of a high and aggravated nature.
In response to the Black Lives Matter movement and protests against police brutality, some states have proposed and some have passed so-called “Blue Lives Matter” bills, which make certain offenses involving police officers “hate crimes.” While supporters have argued that these laws are a response to targeted killings of police officers, some of these laws take aim at far lesser offenses, such as resisting arrest and assault on a police officer. These offenses may be subjectively charged and are subject to abuse as police officers attempt to contain or shut down protests.
A Response to Anti-Trump Protests
Protesters followed and shouted at North Carolina Gov. Pat McCrory when he attended President Trump’s inauguration events. A North Carolina state senator responded by proposing a bill that would make it a criminal offense to “threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties.”
To be sure, not all of these bills will be enacted into laws. Further, some of these bills, if passed, may be struck down by the courts. But some of these proposals may become laws, and some of these laws may pass constitutional muster.
In any event, even without further criminalization of protest conduct, many people who demonstrate will be prosecuted for criminal offenses under existing laws. Thus, what these proposals say about our current political environment, and the potential erosion of our tradition of protest, is far more important than these particular bills themselves.
Regardless of these bills, the citizenry is engaged, and there will be protests. And there will be criminal prosecutions that follow. How will our First Amendment jurisprudence and our traditions of protest and dissent hold up as those prosecutions proceed?
Protests will inevitably continue to occur as long as our political environment remains in its current state, and many people will engage in activity that is, or should be, entirely protected by the First Amendment. These protesters will need a criminal defense lawyer to argue the First Amendment as a complete defense.
Others, as a matter of conscience, will protest in a manner that violates existing laws and goes beyond protected First Amendment activity. They will engage in civil disobedience, defying the laws to make a broader social point. They will need a criminal defense lawyer to argue that their motives and their conduct are, as historian and political scientist Howard Zinn put it, “not a departure from democracy; [but] absolutely essential to it.”
And, yes, some will take advantage of chaotic situations and will engage in needless property destruction or worse, either pointlessly or for their own economic benefit. They will need criminal defense lawyers to argue that their conduct was not premeditated, was aberrational from their otherwise good character, and/or that the harm caused was insignificant, or at least less than the prosecution is making it out to be.
Members of the National Association of Criminal Defense Lawyers, regardless of whether their personal political views are aligned with the protesters they represent, will stand with those protesters when they face criminal charges. We will zealously represent them. We will do it because that is what we always do when someone is charged with a crime.
But also, as we always do, we will be standing for bigger and more fundamental principles. We will be fighting to uphold the First Amendment. We will be recognizing and honoring our country’s rich tradition of protest. And, we will be ensuring that in these charged and divided political times, there is a vehicle for peaceful protest, an outlet for the expression of opinions and frustrations, a way in which ordinary citizens can move the debate, be heard, and try to sway their peers, and a process by which the criminal justice system thoughtfully, fairly, and compassionately addresses the aftermath.
There will be protest. And, because of criminal defense attorneys, there will be justice for those who engage in protest. Both protest and justice are in the richest traditions of our great nation. It is only if that tradition is lost that America will need to be made great again.
- See Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2009 (2016).
- Schenck v. United States, 249 U.S. 47 (1919).
- Jacobellis v. Ohio, 378 U.S. 184 (1964).
- Id. at 197.
About the Author
Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.