An obscure West Virginia law that came to light during the teachers strike gives police expansive powers to crack down on peaceful protesters. While the strike ended on Tuesday with a victory for the teachers, lawmakers should still address the deficiencies of the state’s “crimes against the peace” law — its literal .
The law, as interpreted by a , allows law enforcement officers to employ a range of troubling and archaic responses to groups engaging in “unlawful” behavior. Among other things, it allows them to force private individuals to help shut down the group, search homes nearby without a warrant, and impose guilt-by-association on anyone present if an officer is wounded. These terms are not far from the passed by the British Parliament more than 300 years ago — which makes sense, since the West Virginia law largely reflects language drafted in 1849.
This law, as it stands, could have been used against the striking teachers — and it can still be used against all manner of protesters if it is not updated.
A bill ostensibly meant to bring the law into the 21st century was introduced before the strike began, but the revisions fall short. The bill would eliminate one of the law’s most disturbing provisions, which provides that if an officer dies or is wounded at an unlawful assembly, everyone present is guilty. But the bill would still allow police officers to commandeer private citizens to help disperse a crowd. And the existence of an “unlawful assemblage, rout, or riot” would still authorize police to search homes without a warrant and impose a curfew.
This means the law could be used to impose harsh measures against a group of entirely peaceful protesters and those around them — individuals who, say, step off a sidewalk and onto a street because of the number of people nearby, or who can’t hear a dispersal order or get out of a crowd quickly enough once it is deemed unlawful.
In many ways, these dangers mirror the troubling nature of the broader anti-protest legislative trend around the country. Rather than address the substantive issues raised by the powerful protests of the last two years — like racial justice, environmental protection, and the rights of indigenous communities — legislators have instead chosen to introduce bills that would to quiet their dissent.
In many states, these legislative efforts ignore existing law. In Iowa, for example, a , supported by industry groups reacting to anti-pipeline protests, is framed as necessary to “protect critical infrastructure” — including, unsurprisingly, pipelines. If passed, it would not only , but it would replicate an that already criminalizes property damage. In Wyoming, legislators are considering a similarly repetitive and .
In West Virginia, lawmakers are now in danger of reaffirming an existing, antiquated law. It’s well past time for that legislature, and legislatures around the country, to bring laws that chill protesters into the 21st century.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.