Written By: Anton Sawyer
If you really hate the freedom of speech and the freedom to protest sections to the 1st amendment of the United States Constitution, then 2021 has been a wonderful year for you. Earlier this year, I wrote about various pieces of legislation that were being debated on a state level which would dismantle various parts of the 1st amendment. Given that the legislative sessions for every state in 2021 have been concluded, I felt it was appropriate to look at what laws have passed and how they are going to directly impact the average citizen.
In an attempt to maintain complete transparency, all research and statistical fact-checking for this article, and all articles, can be found at our site's bibliography linked here.
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If you follow politics closely, you know that there were over 660 laws passed throughout the nation over the year. To detail every one of those would take up the space of an entire encyclopedia. Because of the breadth of these pieces of legislation, I’m only going to be focusing on the changes which will diminish our 1st amendment rights specifically.
Because of this volume, there is a link the bibliography which takes you to the International Center For Not-For-Profit-Law—a group that tracks all state laws upcoming and passed which directly impact various parts of the US Constitution. The link we provide goes directly to the section of “US Protest Tracker Law,” and it’s one I highly recommend looking at.
Given that these laws are impacting citizens in at least 45 states, it’s only a matter of time that your state will be impacted. When absorbing the list, you learn something real fast: riots are now set up with a lot broader definitions to what constitutes a riot, along with the increase of violence with a lot more arrests overall. Before we get too deep into the laws which are still fresh on the books, we need to step back a few years and see where this all began.
The 2021 pieces of legislation in question can vary vastly from state to state. Ranging from somewhat minor increases (i.e. raising the penalties on the crimes from a Class B misdemeanor to a Class A misdemeanor with enhanced penalties) to completely draconian laws, they all run the gamut. Those more restrictive pieces of legislation (and even the concept of dismantling the 1st amendment), have the state of North Dakota to thank.
In 2017, the state of North Dakota kicked the party off by enacting some of the most intense restrictions when it comes to ANY kind of protest. HB 1293 expanded the scope of criminal trespass activity under state law to encompass protests, demonstrations, or other gatherings (of any kind) on private property. And HB 1304 prohibited the wearing of masks, hoods, or other devices that "conceals any portion" of an individual's face while committing a criminal offense (including the loosely worded definition of a riot). As drafted, the offense includes individuals wearing hooded clothing while participating in a protest and committing any kind of crime (even a minor offense such as jaywalking) is punishable by up to one year in jail and a $3,000 fine.
In essence, if you are at an event of three or more people wearing hoodies, and you are all using your 1st amendment right of free speech and to protest, and one of your friends walk across the street in an undesignated area, you could all be arrested facing a felony and misdemeanor to boot. With both bills having been signed into law in 2017, and no court cases coming about since then to challenge any of it, the rest of the GOP took notice and starting drafting laws for each state where they have a stronghold.
When you look at the complete list of states and laws on the US Protest Tracker Law, two elements leap out immediately.
1. The definition of “riot” has been greatly expanded.
2. The punishments for rioting have been increased.
The legislation in the state of Arkansas is a good example. They’ve modified the definition of "riot" to: “Rioting is defined in Arkansas to include engaging with two or more persons in ‘tumultuous’ conduct that creates a ‘substantial risk’ of ‘public alarm.’” The state also added HB 1578, which further opens up the definition of a riot up immensely. “HB 1578 Creates a civil cause of action for a person who is injured or has property damaged as a ‘direct or indirect’ result of a riot against a rioter or a person or entity who incites a riot. Under Arkansas law, both the riot and incitement to riot statute are broad, creating potential liability for protesters or organizations who are interpreted to have urged others to have engaged in tumultuous or violent conduct.”
Florida, Iowa, Missouri, and a plethora of other states have followed suit and worded the definition of what a riot is so openly that almost ANY meeting with three or more people in a public place in which at least one of them is angry could be defined as a riot. In addition to this broad definition, almost every one of the states that have enacted these restrictions have also increased the punishments for rioting—many changing from misdemeanors to felonies.
Though not as widespread, another element to the bandwagon of restrictions that are being jumped on with these laws comes in the form of making it illegal to protest in favor of certain environmental causes. Because of the GOP's inability to completely disrupt the nationwide protests that have come about in the 21st century over various pipeline constructions, instead of listening or trying to learn anything about an opposing view, they decided to change the laws themselves. In 2021, 17 states have either changed the wording on existing laws or have enacted new legislation with the specific intent of preventing ANY public display near pipelines or “critical infrastructure.” Of course, a majority of these states are beet-red. Wisconsin, West Virginia, and Texas, just to name a few. The Arkansas laws, the pipeline laws, this is just scraping the surface. If you compiled all of them, it not only shows a complete overhaul of our constitutional rights but also a disgust for those who believe in those same rights.
As much as this article is going to be interpreted as incredibly depressing to those who value all our constitutional/civil liberties, there is a bit of hope. In Missouri, HB 1413 died. This was a law that would bar certain public employees from picketing … at all. The law further mandated that such agreements provide for the "immediate termination" of "any public employee who ... pickets over any personnel matter." You know, complete destruction of the right to protest from soup to nuts. The good news regarding this miasma of nonsense comes from the fact that a Judge of the Circuit Court of St. Louis County found HB 1413 unconstitutional in its entirety and granted a permanent injunction against the enforcement of the law. Another example comes from another article I published, “The Republican Legislation Which Could Legalize Murder During A Riot.” This article looked at a Utah law (SB 138) that would legalize vehicular homicide during a riot. Like with the laws I’d written about above, this law expanded what the definition of a riot could be. Its use was also predicated on the potential fear of someone and other vagueness. At its heart, if you were near a riot and were convinced you heard police give commands to disperse, and the rioters don’t disperse, and you feel your life is in danger, you can flee in a car and not be arrested if you kill someone while escaping. Thankfully, the bill died before it could reach the governor’s desk. Many who live there emailed me when this law was in debate and were utterly convinced SB 138 would pass given the extreme conservative slant of the lawmakers in Utah. Reading the emails of concern and then watching it die in state-congressional debates offers some hope.
It’s this hope that propels me to continue to follow up on these unconstitutional maneuvers. That maybe if enough people know about what’s going on in their state, they can be fully educated and take the steps to elect leaders that actually value what’s in the constitution more than they value their own political futures.
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