Over the past year, a historic level of activism and protest has spilled out into our nation’s parks, streets, and sidewalks — places where our First Amendment rights are at their height. The January 21 Women’s March, anchored in D.C. with echoes across the nation, was likely the in American history. And yet, legislators in many states have followed up on this exuberant activism with proposed bills that are not only far less inspiring, but also unconstitutional.
A few examples illustrate this pattern all too well.
- After President Trump enacted his discriminatory Muslim ban at U.S. ports of entry, immediately erupted at airports nationwide, including a weekend-long protest at Denver International Airport. In response, the airport started enforcing a rule that requires protestors to holding any demonstration.
- In opposition to the construction of the Dakota Access pipeline, protestors and water protectors camped out for near North Dakota’s Standing Rock reservation. The protests were effective: They led the U.S. Army Corps of Engineers to for the pipeline and delayed construction for weeks. The response? Legislators in North Dakota introduced a cascade of bills that would protesters obstructing a highway, as long as the drivers did so accidentally; would punish in any public forum or in a group on private property; would sentence protestors at private facilities with up to ; and would punish protestors who cause $1,000 in economic harm .
- In Minnesota, following death of Philando Castile, protests caused part of a highway to shut down. Then, at the beginning of the state legislative session, Minnesota legislators drafted bills that would and would make protesters of an entire protest if they individually were convicted of unlawful assembly or public nuisance.
Is this spate of anti-protest bills a coincidence? We think not.
Each of the protests described above reflects a success of our representative democracy: People came together, voiced their dissent, and created change. State representatives around the country should be celebrating the fact that their constituents are getting out into the streets and making their voices heard. Instead, state representatives are calling these efforts “” and proposing bill after bill that would criminalize protest or even put the lives of protestors in danger.
%3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22384%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FT7xtJM37NQo%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22%2Ffiles%2Fvid17-rw-antiprotestbills-580x384.jpg%22%20width%3D%22580%22%3E%3C%2Fiframe%3E
Privacy statement. This embed will serve content from youtube.com.
Of course, these legislators don’t say their goal is to criminalize protest. For example, the sponsor of the North Dakota “motorist” bill claims the bill is required to protect the “.” The sponsor of the Minnesota pay-to-protest bill explained his bill by ): “Rosa Parks sat in the front of the bus. She didn’t get out and lay down in front of the bus.” [This seems to have missed the point that Rosa Parks was, in fact, breaking an (unjust) law.]
But even if these bills are dressed up in language about public safety or the “right to drive,” their effect is singular: chilling protest.
Here’s why.
First, there ’t a single city or county that can’t already prosecute people for intentionally obstructing cars or pedestrians or for trespassing on private property.
When protests were so robust that they spilled into the streets in Baton Rouge, for example, or into the Mall of America, the problem wasn’t that law enforcement lacked the ability to arrest anyone engaged in wrongdoing. Quite to the contrary, in both cases, the issue was that police relied on existing or laws to dramatically — and unconstitutionally — overcharge peaceful protesters. Fortunately, the ACLU helped get those charges dropped in court. Addressing that should be the priority for lawmakers — not piling on to the arsenal of misdemeanors that police can already apply to protest-adjacent activity.
Second, let’s address the jaguar in the room: Drivers hate to be inconvenienced when robust protests block streets. (We get it — we’re impatient New Yorkers with places to go. Occasionally.) But driving ’t a right — it’s a privilege. Protesting, on the other hand, and specifically protesting in the streets, is a fundamental constitutional right. Indeed, the Supreme Court has said that streets and sidewalks have “immemorially been held in trust for the use of the public” to make our voices heard. And, just as with nuisance and trespass, many existing laws manage to balance our right to protest with our ability to use the streets to drive.
Unlike constitutional laws, the proposed bills aren’t so carefully drawn. If passed, they would mean that if your foot slipped over the yellow line on the road because someone else at a well-attended protest jostled you, you’d risk jail time, insane fines, or even reimbursing law enforcement for all costs of monitoring the protest.
Most reasonable, law-abiding citizens would think twice before leaving the house to protest if those were the rules of game. And that effect is unconstitutional.
Fortunately, perhaps that message is getting through: Some of these bills have already died. The North Dakota motorist law has stalled in the face of national ridicule. And lawmakers defeated anti-protest bills in and , recognizing that they were unconstitutional.
Map: Where Anti-Protest Bills Have Been Introduced in State Legislatures
Legislators in states with robust protest activity should have one priority: listening to those voices (even if, and perhaps especially when, they disagree with them). Sadly, we’re seeing a different trend — one that tries to silence them. In a year of historic activism, that response ’t just unconstitutional: It’s fundamentally un-American. And we at the ACLU will stay on tight defense throughout this legislative session to fight against any bill that violates the First Amendment. And if one should pass, we’re hopeful the courts will see these bills for what they are: unlawful infringements on our right to speak.
Learn More About the Issues on This Page
-
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.