States Push Back Against Peaceful Protests (Part One)

By: Donovan Suh

In the wake of President Trump’s executive order banning immigration from seven Muslim-majority countries, millions of protestors took to the streets across the country to voice their concerns and grievances involving Trump’s immigration stance. While Muslims and Muslim support groups are encouraged by and grateful for the support provided by protestors across the country, Republican lawmakers are pushing legislation that would criminalize nonviolent protest. For example, in Iowa, lawmakers have introduced a bill that would make blocking traffic a felony punishable by up to five years in prison. In Minnesota, lawmakers proposed an anti-protest bill that would dramatically stiffen fines for freeway protests and would allow prosecutors to seek up to a full year of jail time for protestors blocking a highway. In Indiana, legislators have introduced a bill that would allow police to remove protestors blocking traffic using “any means necessary.” These are not the only states considering anti-protest bills. Others include: Washington, Michigan, North Dakota, Virginia, Colorado, North Carolina, and Missouri.

These various anti-protest bills have caught the attention of the nation’s most active civil liberties guardians, the American Civil Liberties Union (ACLU) and the First Amendment Coalition (FAC). Lee Rowland, a senior attorney at the ACLU, and David Synder, executive director of the FAC, both view many of the anti-protest bills as violations of the First Amendment right to assemble, which could have a chilling effect on legitimate peaceful protests. Whether these anti-protest bills actually violate the Constitution is a difficult question to answer, and each bill’s constitutionality must be individually determined. Part One of this blog post will address the arguments in favor of the constitutionality of the anti-protest bills proposed by lawmakers in Iowa, Minnesota, and Indiana.

In Cox v. New Hampshire, a unanimous Supreme Court held that, although the government may not regulate the contents of public speech, it had the authority to place reasonable time, place, and manner restrictions on speech for public safety justifications. For example, the government has the authority to forbid demonstrators from protesting past a certain time or in a certain location so long as the measures are unrelated to the substantive content of the protest. Here, none of the three bills place any restrictions or penalties depending on the substantive content of the speech, but rather focus on the location (public roads) and the manner (blocking traffic) of such speech. Additionally, in Cantwell v. Connecticut, the Supreme Court held that when a protest interferes with traffic on public streets, the state has the power to prevent or punish protestors involved in such interference. Thus, under Cantwell it seems that Iowa’s bill, which makes blocking traffic a felony punishable by up to five years in prison, Minnesota’s bill, which dramatically stiffens fines for freeway protests, and Indiana’s bill, which grants police the authority to remove protestors blocking traffic by “any means necessary” do not violate the First Amendment right to assemble, but rather statutorily implement what the Supreme Court has already interpreted as constitutional.

Furthermore, protestors who deliberately block traffic impede law enforcement, prevent emergency health services from providing assistance to those in urgent need, and restrict the commercial flow of the adjacent area. These are all concerns that fall under the umbrella of the police power doctrine. The police power doctrine stems from the Tenth Amendment, which gives states the rights and powers not expressly delegated to the United States federal government. These powers include the ability to establish and enforce laws protecting the welfare, safety, and health of the public. Thus, an argument can be made that these anti-protest bills are a legitimate exercise of the states’ police power to regulate the safety and welfare of its citizens.

It remains to be seen whether these proposed anti-protest laws will be adopted by any of the ten states currently considering their adoption and whether the constitutionality of these laws will be challenged by the courts. Part Two of this blog post will address the arguments against the constitutionality of the anti-protest bills proposed by Iowa, Minnesota, and Indiana.