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New Anti-Protest Laws Proliferate Across the United States

A wave of anti-protest laws targeted at the BLM uprising are passing through statehouses across the country.

B.C. Daurelle

April 26, 2021
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Photo: Katesheets, Creative Commons Attribution 2.0 Generic License

Across the country, new laws are being propagated to chill, curtail, and criminalize protest activities of the type that swept across the country last summer during the massive Black Lives Matter marches. In this year’s legislative session, state lawmakers have introduced twice as many pieces of legislation limiting the right to protest than in any previous year, and it’s only April. The timing of this tsunami of restrictions is hardly coincidental: many of these bills were conscious efforts to curtail renewed unrest in the wake of the Derek Chauvin trial, the most high-profile prosecution for police brutality in three decades. As police murders continue unabated, we can expect to see a rejuvenation of the movement in the streets that rocked major cities last year. Pro-police lawmakers are moving to install these measures before another uprising takes place. The masses who took to the streets after George Floyd’s death have yet to regain the momentum that was so thoroughly smothered by Democrats. Meanwhile, police and the politicians who protect them have learned the lessons of last summer and are moving to legitimize the uses of force necessary to repress another uprising.

It is in this context that a raft of draconian state laws has been introduced. Bills in Oklahoma and Iowa seek to indemnify those who plow their cars into protesters while criminalizing those protesters for occupying public space. The Minnesota and Indiana bills seek to punish protesters by cutting off their access to public benefits or barring them from public office, respectively. Ohio legislators have introduced three bills that, according to a local pastor, ”would have made the protest movement of the ‘60s illegal”. Oklahoma has passed a bill to prevent officers from being “doxxed” to discourage sharing videos of police brutality online. Florida has passed a sweeping “anti-rioting, pro-law enforcement” law that expands protections for police and allows more severe fines and criminal charges to be leveled against protestors.

Criminalizing Protest, Empowering Police

These laws all have clear ties back to events of last summer, but they seek to legitimize the use of unchecked force in a sweeping, permanent fashion. By codifying the pro-police framing of protest activity into law, these measures seek to legitimize those uses of force that police already resort to in order to curtail protests. The importance of language here cannot be overstated: Florida’s law, which Governor DeSantis proudly calls “the strongest anti-rioting, pro-law enforcement bill in the country,” has been roundly criticized for vagueness of phrasing and definitions, creating uncertainty about how its provisions might be enforced. However, it’s clear that this is a feature of the law, not a defect. The bill equates blocking access to public space with violence against property and heightens the penalties for violence against property. It expands the definitions of “rioting” and “looting,” carves out an entirely new crime called “mob intimidation” that could easily be used to criminalize protestors for simply shouting at police, and mandates a six-month minimum jail term for striking an officer during a protest. It creates new and sweeping standards for “guilt by association” in the context of a protest, such that any person marching in a protest in which property damage occurs can be charged as a “looter.” And, as a final, direct slap in the face to the BLM movement, it creates legal penalties for attempting to take down Confederate monuments and curtails the right of local governments to defund their own police forces (in response to a problem that has yet to arise in Florida).

Criminalizing protests and empowering police repression are two sides of the same coin. By expanding legal “gray areas” in the discretionary use of police force, the opportunities for brutality and repression are greatly expanded, as are the possible avenues of defense in those few instances where use of police force is actually subject to legal challenge. Conversely, broadening the definition of terms such as “rioting,” “looting,” “violence,” “disorder,” and “threat” heightens the risk of engaging in any protest activity, and the definition of what constitutes a “peaceful protest” is significantly constricted, allowing police to suppress demonstrations with ever-more flimsy or pretextual justifications. Just as police often claim to have “felt threatened” as justification for brutalizing or killing Black individuals, these laws seek to let police apply that same logic to crack down on organized protests by preemptively labeling them violent or threatening. 

The Language of Violence 

Beyond Florida, other states’ new restrictions are less sweeping, but no less insidious in how they seek to re-frame police brutality with pro-cop language. Oklahoma’s bill to prevent “doxxing” police officers is a wild inversion of the language of power. Doxxing, a term used to describe the victimization of individuals on the internet by bringing their public details to light in order to harass and threaten them, has little relevance to the act of publicizing instances of police brutality. By using the term, lawmakers seek to invert the public perception of such exposés, re-framing police as the victims of a (theoretical) mob rather than as agents of violence themselves. Meanwhile, the police themselves can actually dox the daughter of the mayor of New York in retaliation for participating in BLM marches without so much as a slap on the wrist.

In Florida, Oklahoma, and Iowa, the explicit protection of people who cause injury and death to protestors by striking them with cars inverts the language of violence even more completely: the driver who drives his car into protestors is given every opportunity to claim fear for his life or property, while the protestors themselves are assumed to be engaged in a form of “violence,” i.e., the occupation of public property. These laws are direct, antagonistic responses to the maiming of protestors by a vehicle in Tulsa last May and cannot be understood without reference to similar incidents in Aurora, Colorado in June, and the killing of Heather Heyer in 2017. The pattern of these incidents give lie to the justification for the laws, which indemnify drivers who even simply feel threatened by protestors. Whether the drivers’ actions are a panicked response, as may have been the case in Tulsa, or a deliberate attempt to cause harm, as in the other two instances, the language of fear and threat obscures the vastly uneven power dynamic between an unarmed crowd of marchers against a person wielding a multi-ton steel weapon. Again, a vague opposition to “violence,” in this case the “violence” of occupying public space and preventing the movement of traffic, is used to justify actual violence against those protesting police brutality.

Not a “Both Sides” Issue

Outside of the Republican legislatures proposing them, condemnation of these laws has been widespread across the political spectrum; Democrats have generally opposed them on grounds of curtailing free speech and the right to assemble, although they do not challenge the implied equation of violence against property with violence against people or the idea that police have some “proper” role in monitoring or containing protest movements. The Florida law in particular has raised concerns even among centrist and right-leaning circles, who worry that its broad and vague language could allow it to be turned against demonstrations of right-wing power, such as 2nd Amendment rallies or other conservative political demonstrations. However, we need not pretend that the law will be blindly applied in such a way that it “accidentally” criminalizes political activity that aligns with support for police power and private property. We can predict confidently how these new powers will be used in the overwhelming majority of circumstances: legitimized repression of protests by the economically and politically dispossessed. 

For example: DeSantis has cited exactly one example of right-wing violence in an effort to make an “both-sides extremism” argument: the January 6 invasion of the U.S. Capitol. Many lawmakers who have specific criticisms of the bill’s details have echoed this point to justify their support for it. This is extremely telling, since the January 6 event was very clearly allowed, if not enabled, by police at every level. While these “anti-riot” and anti-protest laws would dramatically expand the repressive options open to police, this is all for naught if the police choose not to exercise those powers. The idea that expanded police power would have “allowed” the police to crack down on the January 6 rioters in the same way that they (already, without consequence) cracked down on last summer’s BLM protests flies in the face of all evidence and reason. 

Police are acutely aware of the legal limits imposed on their authority and equally conscious of how and when to violate it with impunity. For evidence of this, we need look no further than the complaint record of Derek Chauvin, which has received some publicity even though it was largely excluded from his trial. Long before he killed George Floyd, Chauvin exhibited a long pattern of nearly-identical behavior, applying the same kneeling technique with excessive force and brutality. In previous cases, Chauvin evinced a clear knowledge of when to let up: far beyond what is “necessary” (by police conduct standards), but short of where he would face legal troubles. This is why, despite having a rap sheet with 18 complaints of excessive force, Chauvin faced nothing worse than two “letters of reprimand” until he murdered George Floyd on camera. He knew precisely how far he could stray beyond the bounds of legality without risking any serious consequences for himself.

This awareness is everywhere in evidence in cases of police brutality: wherever the legal and societal boundaries are on what level of police violence is “acceptable,” the police will inevitably push beyond them to the limits of the system’s tolerance. It took a brutal and prolonged murder, caught on camera and shared widely online, to convict even an egregious sadist like Chauvin; these new laws are all the evidence we need that police, and the bourgeois politicians who rely on them, have no intention of curtailing the day-to-day climate of violence that allowed someone like Chauvin to thrive. In fact, they signal a clear desire to expand those boundaries, in direct response to a mass protest movement that threatened the legitimacy of police and the regime of class interests they protect. They are the clearest possible signal that the mass mobilizations of the summer struck fear into the hearts of the upper classes, so we must be ready to continue and broaden those mobilizations.

Even as Republicans attack the right to protest directly, we must not fall into the trap of relying on Democrats’ legalist and electoral solutions as the only means of resisting, because these will eventually fall flat in the face of a police force empowered to repress protests by any means necessary. We have to resist not only these harsh restrictions on the act of protesting, but also the fundamentally bourgeois framing that legitimates only peaceful protests that do not threaten private property; this means independence from Republicans and Democrats alike. Even as it becomes more dangerous, legally and physically, to engage in protest, it becomes even more important for us to continue doing so.

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