Demonstrating the efficacy of direct action, right-wing legislators across the country are ramping up state legislative efforts to limit the right to protest. According to our colleagues at the International Center for Nonprofit Law (ICNL), as of April 29, 2021, there were more than 30 new laws and 68 bills in play to restrict the First Amendment rights of protesters. The majority of these oppressive proposals will never be put into action, but some will, and a few already have — despite their clear constitutional violations. While we should all pay attention to these racist, extractive industry-driven machinations, it’s equally important that we not allow them to silence voices of dissent. Only by standing strong in the face of tyranny can we defeat it.

Here’s what you should know:

  1. Many of these laws and bills are aimed at increasing criminal penalties for people challenging “critical energy infrastructure,” aka pipelines, fossil fuel mining, refineries, etc. – a clear sign that they’re scared of the progress being made by Indigenous Water Protectors and other climate activist movements.
  2. Some of the laws are quite clearly responses to the mobilizations for Black lives and have fundamentally racist principles at their core.
  3. A bill is not a law. Most of these bills are unlikely to pass. They are performative, explicitly crafted by right-wing groups like ALEC (the American Legislative Exchange Council), to try to intimidate and scare people opposed to their corporatist agenda into staying home instead of protesting.
  4. Most of these types of bills that do make it into law will ultimately be found unconstitutional, and therefore unenforceable. We need look no further than the late 1990s and early 2000s, when the Animal Enterprise Terrorism Act (AETA) and state “Ag Gag” bills mimicking that Act were passed, spurred on by the efficacy of animal rights and media activists documenting torture in captive animal facilities. Of the 22 such laws that were passed, only seven remain on the books, and they are rarely used against protesters – likely because when the State tries to take these extreme charges to court, we defeat them.
  5. In other states, the opposite is happening. In positive response to activist mobilizations against police brutality and for racial justice, a number of states are advancing legislation to tackle our racist, and decidedly unjust, legal system. While most of these bills are a far cry from the defund and abolish demands of racial justice activists (and CLDC), many are positive baby steps in the direction of creating police accountability, harm reduction, and transitioning from a prison-industrial-complex culture to community-aligned public safety programs. ICNL is also tracking those bills here.
  6. The contrast between what does and doesn’t pass – especially in states driven by the extractive industry – is telling. For example, Oklahoma just enacted a law that makes it legal to run down protesters with your vehicle if you are trying to “escape” the protest, whereas Colorado, Connecticut, and New Mexico have all recently enacted policy to chip away at qualified immunity for police.

How did this trend towards anti-protest bills develop amidst such growing demands for racial and climate justice? Mostly via sneaky political shenanigans. For decades, conservative politicians across the U.S. have been fervently gerrymandering voting districts to shore up their statehouse strongholds by boosting their election odds. In a country where political district boundaries are drawn by a politicized legislature in 35 states, technically it’s something that both Democrats and Republicans engage in. However, Republicans are notorious for abusing the process to marginalize voters who stand against their agenda. In 2010, they even brazenly went public with RedMap (Redistricting Majority Project) to do this to retain power.

Today, the result is a preponderance of conservative state legislatures that are at odds with the environmental and racial justice ethos of a firm majority of U.S. residents. It was only logical for the far-right to turn to state legislatures to advance its agenda of oppression once Democrats re-secured the Presidency and Senate after Trump’s disastrous reign. And that, they have pursued with the vigor of those who are terrified of losing their absolute power to a rising tide of justice.

At its heart, though, this anti-democratic state legislative push is an indicator that the right-wing is losing its influence at the federal level. It must turn to these heavily gerrymandered state governments to push its hateful agenda. It’s incumbent on all of us to make it clear that we’re not gonna take it. Here’s how people are resisting:

  1. Working within the system: Sometimes, it’s worthwhile to hold your nose, get in there, and lobby. If we don’t, the richer, powerful lobbyists of the far-right and their centrist apologists/allies will outmaneuver us. For bad bills, strong community organizing can send a clear sign that they will be met with fierce resistance every step of the way; and for ‘reform’ bills, it helps hold legislators to their commitments. For example, during Oregon’s 2020 emergency legislative session (which was largely closed to the public due to Covid-19), initially good police accountability bills got badly watered down because the only really vocal lobby group involved represented the police unions. The Protect Dissent coalition, of which CLDC is a member, is closely tracking all of these bills and providing organizing and media support to local groups fighting for our rights at the state level.
  2. Protesting: It’s important to show these oppressors that the voices of justice are not afraid of them – that the more the government and industry seek to silence dissent, the more dissent they will create. In most situations, the consequences of protesting under these new laws aren’t much more severe than without them. And when they are, there’s a good likelihood of getting your charges dropped if you take it to trial.
  3. Having the best defense: If you do get arrested and up-charged under any of these laws, mission-aligned legal representation will be critical to your case. CLDC can possibly provide direct representation or at minimum assist you in finding local counsel that is well-versed in activist legal defense. Thus far, we have found that the most effective way of defeating such unjust – and ultimately illegal – laws is via defending criminal court cases, as “standing” is indisputable, whereas a lawsuit directly challenging the law before it’s applied is likely to be dismissed.
  4. Suing: AETA bills, anti-boycott bills aimed at Palestinian rights activists, and other targeted speech repression bills have been successfully challenged via direct litigation. Should more of these bills become law, we can expect similar successful civil rights court challenges.
  5. Supporting efforts to end gerrymandering: Proposed federal legislation would require all states to handle redistricting (which is triggered by the U.S. Census every 10 years) via a non-partisan panel rather than allowing whatever party is dominant to drive the process.

Want to learn more? Contact Stephanie to get plugged into local groups or networks fighting back against these laws and bills.