Elly Page had never seen anything like what’s happened in recent days. A senior legal adviser at the International Center for Not-for-Profit Law, Page has been tracking the proliferation of anti-protest bills across the U.S. since Donald Trump became president in 2017. “The number of bills we have seen in the past three weeks is unprecedented,” she said.
Since the day of the insurrection at the Capitol on January 6, at least nine states have introduced 14 anti-protest bills. The bills, which vary state by state, contain a dizzying array of provisions that serve to criminalize participation in disruptive protests. The measures range from barring demonstrators from public benefits or government jobs to offering legal protections to those who shoot or run over protesters. Some of the proposals would allow protesters to be held without bail and criminalize camping. A few bills seek to prevent local governments from defunding police.
The pushes by close to a fifth of state legislatures are part of a pattern that began to pick up speed after the summer’s uprisings in response to the police killing of George Floyd, which in many communities included significant property damage. In a handful of states, lawmakers did what they often do: introduced new legislation — however unnecessary — to show that they were responding to their constituents’ concerns.
“We expected to see some bills this month, as state legislatures reconvened, but the number of bills and their severity is still shocking.”
The rate of new bills being offered sped up dramatically this month as lawmakers kicked off their legislative sessions at the very moment that Trump supporters stormed the U.S. Capitol. Bills quickly arose in Arizona, Florida, Indiana, Minnesota, Mississippi, Nebraska, North Dakota, Oklahoma, and Rhode Island.
“There has generally been an uptick at the beginning of odd-numbered years, when most states begin their biennial legislative sessions. But this year beats prior recent years,” Page said in an email. Since January 1, she noted that 11 state legislatures have introduced 17 bills, including those filed before the Capitol insurrection. “Compare that to 0 during the same period in 2020, 9 in 2019, 5 in 2018, and 13 in 2017,” she said, adding that the 2017 spike was mostly due to North Dakota responding to that winter’s Standing Rock protests.
Because of state legislatures’ part-time schedules, most legislative sessions were over by late last summer, leaving insufficient time to pass bills that responded to the uprisings against police brutality. “We expected to see some bills this month, as state legislatures reconvened, but the number of bills and their severity is still shocking,” she said.
In Florida, lawmakers have latched on to the insurrection at the Capitol to justify a bill they’d been working on for months. “Lawmakers may be trying to take advantage of the moment and the visuals of the violent and destructive Capitol scene, to make their case — to the public and to fellow lawmakers — that these draconian new measures are necessary,” said Page.
To some observers, the timing of the bills smacked of hypocrisy. “It’s telling that so many radical right-wing state lawmakers are responding to an attack on our democracy with an attack on our democracy,” added Daniel Squadron, a former Democratic state senator from New York and president of Future Now, a group focused on winning state legislatures from Republicans. “Make no mistake, these bills were teed up long ago to criminalize peaceful protest, stifle speech, and obscure the clear distinction between First Amendment rights and a violent insurrection.”
Restrictions and Penalties
The rash of bills present something of a unified effort, drawing on predecessor legislation as well other states’ measures for their language.
A version of Nebraska’s bill was first described at a press conference last fall, when Republican state Sen. Tom Brewer said he was inspired by Florida’s proposed legislation. Just as Florida reintroduced a version of its anti-protest law a day after the Capitol attack, Nebraska Republican lawmaker Joni Albrecht introduced her own version of a bill on January 7 — a bill she told The Intercept had nothing to do with events on Capitol Hill and was modeled on a law passed in Tennessee last year.
The Nebraska bill, like many of the others, qualifies as what Page has described as a “kitchen sink” bill: a single bill throwing “everything but the kitchen sink” at the issue of disruptive protests. Like several other states’ bills, lawmakers in Nebraska are seeking to redefine disruptive protests — in this case, upping the penalty for “riots” that include any disturbance in a public place involving at least three people obstructing government functions or putting property or people at risk.
New Nebraska penalties, like ones proposed in Mississippi and Indiana, would also punish anyone aiding a riot. Prosecutors would be able to bring felony charges against anyone who was a part of a riot where injuries or significant property damage occurred, even if they didn’t personally cause it. Several states also imposed stricter detention rules around rioting: In Nebraska, riot participants would not be eligible for bail, while proposals in Arizona and Kentucky would allow law enforcement to detain people arrested during a riot for 12 hours unless a judge deemed them unlikely to begin rioting anew.
The Nebraska bill also creates new, harsher penalties for obstructing traffic — another one of the most common recent anti-protest bill elements, included in legislation in Oklahoma, Arizona, Florida, Indiana, Rhode Island, Kentucky, and Mississippi.
In other states, bills would expand the definition of conduct that would justify use of force from bystanders against demonstrators, including things perceived as “threatening” behavior. Among these provisions, some states’ proposals would strengthen “stand your ground” laws — allowing deadly force — should a person be confronted by a “mob” or riot, including in New Hampshire; other provisions, such as in Oklahoma, Mississippi, and Florida, would protect a driver who, fleeing a riot, injures or kills someone.
“Oklahoma has no shortage of ways to punish folks. So really what this does is it chills speech.”
For civil liberties advocates in Oklahoma, the measure warranted particular attention: Last summer, a man drove a truck with a trailer into a protest in Tulsa, but prosecutors declined to charge the driver. Nicole McAfee, director of policy and advocacy at the ACLU of Oklahoma, said the bill entrenches a culture of impunity among protest opponents and could make demonstrators think twice about engaging in a protest. “Oklahoma has no shortage of ways to punish folks,” McAfee said, noting that new laws were not needed to deal with disruptive protests. “So really what this does is it chills speech.”
While most of the bills have their roots in responses to last summer’s protests against police brutality, only one of the new bills, in Minnesota, deals with oil and gas infrastructure. (Ohio passed such a bill in December and signed it into law this month.) The logic for the bill in Minnesota is clear: Indigenous-led pipeline opponents participating in a direct action protest movement against Enbridge’s Line 3 tar sands pipeline in the state have repeatedly halted pipeline construction. The Minnesota bill focuses on individuals who aid oil pipeline protesters, including up to 10 years’ imprisonment if their associate damages the property with the intent to prevent pipeline operations.
Like many of the other states’ efforts, the Minnesota bill is not exactly new. Versions of it have been introduced and rejected repeatedly in recent years — a pattern also playing out with Rhode Island’s anti-protest bill.
Several states are seeing multiple anti-protest bills at once: Indiana has seen four bills introduced since January 1. As Katie Blair, advocacy and public policy director at the ACLU of Indiana, put it, “They’re all different frankensteins.”
Civil Liberties Opposition
Central to the debate over the laws is their necessity. “There’s really nothing on the books about the rioting in the state of Nebraska,” said Albrecht, the lawmaker who introduced the bill. “We need to be able to clarify the difference between a peaceful protest and rioting.”
“I just don’t think that’s accurate,” said Spike Eickholt of the Nebraska ACLU. He noted that Omaha police seemed to have no trouble making numerous arrests last summer during police brutality protests: “Whether you’re protesting or not, you don’t have any right to break someone’s car window, you don’t have any right to block the street.”
The bills have potential to do real harm, he said. In particular, Eickholt pointed to attempts in multiple states to limit bond for people who have been arrested but not yet convicted of a protest-related crime: “Other jurisdictions around the country are doing things to not be wedded forever to cash bond or to allow people to actually be able to be presumed innocent.”
Various ACLU chapters across the country view the bills with suspicion. “We believe it’s unduly harsh, it’s unnecessary, and it’s clearly aimed at protest,” said Steven Brown, ACLU Rhode Island’s executive director, of the bill in his state.
The civil liberties advocates worry that bills moving in the wake of the Capitol insurrection may find a broader range of targets once enacted. “I can only speculate, but if the alleged motivation for these bills is the attack that occurred on the Capitol, I think we can virtually guarantee that its actual implementation and enforcement will be against people of color and other protesters in very different contexts,” said Brown.
The insurrection could also help give the bills a boost. “I think the insurrection at the Capitol is something that may change the course of if these bills get hearings or not,” said Blair, of the Indiana ACLU. Advocates will have to stay on guard, she said, noting that the Indiana legislature expects hundreds more pieces of legislation during its session: “I don’t think we’re done seeing these bills.”