Peaceful protests are protected by the United States Constitution’s First Amendment as well as international human rights law. But a legislative assault aimed at eroding these protections is underway in several state legislatures.
It’s nothing new. Various states have long-tried to curtail the right to protest. They do so by legislating wide definitions of what constitutes an “unlawful assembly” or a “riot” as well as increasing punishments. They also allow police to use catch-all public offenses, such as trespassing, obstructing traffic, or disrupting the peace, as a pretext for ordering dispersals, using force, and making arrests. Finally, they make it easier for corporations and others to bring lawsuits against protest organizers.
While proportionate restrictions on the right of peaceful assembly, like creating buffer zones around abortion clinics to ensure access, may be necessary, the use of catch-all offenses against peaceful demonstrators or the imposition of increased penalties to deter assemblies are not.
At a time of large mobilizations across the US, attempts by states to deter and impose criminal penalties on peaceful protesters should be stopped.
According to the US Protest Law Tracker, created by the International Center for Not-for-Profit Law, there are currently 51 bills under consideration in 24 state legislatures, including as many as 10 in Oklahoma, that they warn would threaten the right to assemble peacefully.
Among the proposed laws are nine, including three in Oklahoma, that the Tracker reports would provide civil and/or criminal immunity for drivers injuring or killing protesters unlawfully disrupting traffic and one stand-your-ground bill in New Hampshire that would allow deadly force against protesters “likely” to use “any” degree of unlawful force during a riot.
Other bills would increase penalties for participating in unlawful protests, something that happens automatically in many jurisdictions once someone marches without a permit, or for committing an offense – including jaywalking or trespassing – while in an unlawful assembly.
International human rights law protects the right of peaceful assembly and requires authorities at all levels to facilitate such assemblies and avoid unnecessary or disproportionate restrictions on them. The mere act of planning or participating in a protest should not be criminalized. Authorities are also required to protect people participating in such assemblies – bills that encourage or allow violence against protesters are inconsistent with those obligations, and states should abandon them.