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As Protests Escalate Under Trump, States Seek New Ways to Deter Them

Stricter rules and penalties for protesting are being considered in nearly half the states.

Police officers arrest a protester in St. Louis on Saturday. (David Carson/St. Louis Post-Dispatch/TNS)
(TNS/St. Louis Post-Dispatch/David Carson)
Americans have a constitutional right to assemble and protest. But they don't have the right to do it in the middle of a freeway.

In contrast to demonstrations in recent decades, which were often held in fenced-off "free speech zones," many protesters are now being more disruptive -- whether they're blocking access to highways, chaining themselves to pipelines, damaging businesses or being physically violent toward other people or property.

In response, state lawmakers -- mostly Republicans -- are seeking new ways to regulate or criminalize protests.

"You have absolutely zero First Amendment protections or right to assemble in the center lane of I-94," says Minnesota state Rep. Nick Zerwas, the GOP sponsor of a bill to increase penalties for trespassing on freeways. "Clearly, the current misdemeanor penalty hasn't been an effective deterrent."

Zerwas' bill is part of a national trend. Roughly 20 states are considering new regulations and penalties regarding protests. New laws have been enacted this year in a handful of states, including Georgia, North Dakota, South Dakota and Wisconsin. Some increase penalties for picketing near "critical infrastructure," such as pipelines and airports. Some call for protesters to pay overtime costs for law enforcement. Some threaten to seize protesters' assets. And some require colleges and universities to suspend or expel students who disrupt campus speakers.

"There's no question you've seen an upsurge in the numbers of these bills and an increase in their stringency," says Sam Munger, senior adviser to the State Innovation Exchange, a strategy center for progressive legislators. "It's both reactive to a recent upsurge in grassroots protests and an effort to intimidate protesters." 


A Brief History of Protest Regulation

Assembling to protest government policies predates the founding of the nation, with the Boston Tea Party and other acts of colonial rebellion. Lawmakers trying to crack down on protesters is also nothing new. Back in 1941, the U.S. Supreme Court ruled that governments could impose reasonable regulations on the "time, place and manner" of public demonstrations.

"This is a very common thing in the history of the United States, to impose some costs on social movements or protest movements," says Fabio Rojas, a sociologist at Indiana University. "Basically, the whole point of this is to suppress protests."

New restrictions were put in place in response to the 1960s-era protests over civil rights and the Vietnam War. Martin Luther King's celebrated "Letter from Birmingham Jail," for example, was written after he was imprisoned for leading a march. 

During the 1980s and 1990s, protests became "ritualized," says Don Mitchell, author of The Right to the City: Social Justice and the Fight for Public Space. Police and protesters would negotiate the place and manner of protests, agreeing to limit the areas where they would be held.

Such agreements became more difficult to pull off after the 1999 "Battle for Seattle," a protest against the World Trade Organization, when some participants in a mass demonstration turned violent and vandalized property and attacked police. Since then, some police departments have responded to protests with overwhelming force, showing up in riot gear. 

"Police are trained in how to deal with riots," says Michael Heaney, a University of Michigan sociologist and, with Rojas, co-author of Party in the Street: The Antiwar Movement and the Democratic Party after 9/11. "When they see a large group of people, they tend to treat it as a riot."

That approach continues today.


Protesting in the Trump Era

In Arkansas, GOP state Sen. Trent Garner introduced a bill to put protesters in prison for up to a year if they engaged in "mass picketing" that interfered with freeways or other forms of transportation. 

"I started to see these national protests turn into something more violent," he says. "Especially since President Trump's win, we've had this huge rise in violence against private citizens."

Garner says he's "100 percent" in favor of the right to assemble, but he argues there's "a difference between speech and action." Nevertheless, Republican Gov. Asa Hutchinson vetoed his bill out of fear that it violated constitutional protections.

Courts have sometimes struck down penalties against protesters, finding that they violate rights of free speech and assembly. "A lot of the regulations on time, place and manner are efforts to make sure that the speech of protesters is not effective," says Mitchell, who is now teaching at the University of Uppsala in Sweden. 

Legislators in several states introduced bills earlier this year to protect drivers who hit protesters blocking traffic from civil liability. But those bills are likely to have a rougher time in the wake of the protests last month in Charlottesville, Va., where an anti-white supremacy protester was killed and at least 19 others injured when a neo-Nazi allegedly ran them down on purpose.

Even when legislation isn't on the table, the issue brings controversy.

On Tuesday, Lynne DiSanto, the GOP whip in the South Dakota House, apologized after sharing a meme on Facebook that said, "All lives splatter. Nobody cares about your protests. Keep your ass out of the road."

"I think this is a movement we can all support," DiSanto had posted. 

In response to complaints, DiSanto told the Rapid City Journal, "I am sorry if people took offense to it and perceived my message in any way insinuating support or condoning people being hit by cars. I perceived it differently. I perceived it as encouraging people to stay out of the street." 

DiSanto lost her position with a real estate company as a result of the post. Yet other public officials have shared the "all lives splatter" meme.

Protests, by their nature, are confrontational. They are a statement of dissatisfaction with the status quo and a means for people to seek satisfaction or redress when they haven't been successful through conventional political channels.

"You have this situation where people feel all branches of government are not responding to popular demands," says Azadeh Shahshahani, legal and advocacy director for Project South, a human rights group based in Atlanta. "Showing up in the streets is really the only means left to try to push forward a progressive agenda."


Police as Targets and Protectors

Police appear at protests to provide security. But they've often been the target of protests themselves. With anti-police protests increasing in recent years in response to high-profile police shootings captured on video, their role has become more complicated.

"Given the intensity of protests around policing itself, the cops are at once the object of the protests and meant to control it," says Mitchell, the Uppsala professor. "You have upper brass saying, 'We understand the need for protests,' but frontline cops are often behaving very, very aggressively because they see themselves as the target."

In recent days, St. Louis has seen repeated demonstrations over the exoneration last week of a former police officer's fatal shooting of a black drug suspect. Protesters have been met with massive force and arrests, prompting complaints that police have overstepped their bounds. Mayor Lyda Krewson has expressed support for law enforcement but also said her office will investigate complaints about "intimidation" tactics by police.

Krewson also said it was inappropriate for St. Louis police to chant "Whose streets? Our streets," a common chant used by protest groups, after clearing out protesters from downtown streets on Sunday. Mike Faulk, a reporter with the St. Louis Post-Dispatchsaid that multiple officers knocked him to the ground and one pepper-sprayed him while he was covering a protest.

On Tuesday, the St. Louis County Police Association posted a story on its Facebook page about the owner of a local pizzeria who had complained about police behavior and given out water to protesters. The police association suggested that supporters of the police should exercise their "freedom of speech" by calling the pizzeria to complain. A "Blue Lives Matter" group has encouraged people to put hundreds of one-star reviews of the shop on Yelp and other websites.

At the moment, there seems to be a cycle of escalation and response. As protests become more frequent and sometimes lead to violence, lawmakers are seeking ways to control them.

"We're seeing not just protests again but protests in places where there haven't been protests for a long time," says Heaney, the Michigan sociologist. "These new laws are an effort by law enforcement and the legal system to grapple with things that they're not accustomed to."

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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