Anti-Protestor Legislation: The New Prior Restraint?

By Fernando Tafoya

The United States Constitution is clear. “Congress shall make no law…abridging the freedom of speech..” To silence protestors that do not agree with them, legislators are proposing laws and regulations that violate the constitution. What are these proposals? Why do they violate the Constitution’s first amendment protection? Can government be trusted to determine what its’ people should hear by imposing laws that increase fines, jail time and allow the seizure of property from protestors who are exercising their right to deliver a message of protest? 

In the state of Washington, a state senator is proposing legislation that protestors may be charged with “economic terrorism.” The law would make protestors that create any economic disruption or jeopardize human life or property, as determined by law enforcement, subject to felony prosecution and be subject to five years of imprisonment and a $10,000.00 fine. The law would be expansive to include groups that organize a protest considered “disruptive.”

In Arizona, legislation would snare all protestors if a protest turns violent. Law enforcement can arrest the planners of the protest. Police can seek participants in advance and arrest any organizers if they believe the protest could become a riot. One of the rationales for this law is it is better to stop a riot that is not planned and has not happened by arresting the planners of a protest because it may become a riot in law enforcement’s opinion. In Minnesota, protestors on freeways can be liable for additional jail time, increased fines and costs of their prosecution, under proposed legislation, Indiana and Iowa are also proposing increases in fines and jail time including felony charges under “use any means necessary” legislation. A common rationale for these punitive, measures is lawmakers are “sick of this garbage.”

In North Dakota, protestors may have limited rights to sue an irate driver who strikes them with their vehicle if the protestor cannot show the impact was intentional under proposed legislation. In North Carolina, licensing credentials for teachers may be lost if they are in a protest and charged with a “refusal to disperse” violation under proposed legislation. 

At first glance, these proposals appear neutral aimed at keeping the public safe from protests that run amok. A second look, however, shows these legislative proposals hostility towards the first amendment. The proposed laws are government’s efforts to initiate a new wave of prior restraint laws that violate a person’s freedom of speech.

A prior restraint is a first amendment doctrine that prohibits a government action from prohibiting speech or expression before it takes place. A law requiring a speaker to acquire a permit or license before speaking is a prior restraint as are laws that prohibit certain speech. The proposed laws punish conduct that has not occurred to restrain the protestor’s speech. Threats of increased jail time, increased fines, costs, new felonies, loss of teaching credentials and freedom for drivers to strike protestors chills a person’s right to engage in free speech. Under the proposals, a peaceful protestor can suffer prosecution if some other protestor engages in conduct that violates the proposed laws.

What is disturbing about the proposals, however, is the ability of law enforcement to “seek out and arrest” planners of protests if law officials determine a disturbance may occur. Under this rationale, law enforcement will be able to seek and find protestors and arrest them for planning a protest. It does not matter if a “disturbance” is not part of the plan. The proposed laws leave this determination to law enforcement. The government will have the power to stop a protest before it begins based on the state’s belief of what the protestors may say or do at a later time. The proposed laws are government attempts to curtail speech the state does not approve of. A violation of the first amendment prohibiting prior restraint laws. 

In all states, there are laws prohibiting violence, racketeering, riots, obstructing traffic and terrorism. The proposals do not advance public safety. Instead, they silence critics and if the protestors persist on speaking these laws will have them arrested, fined and thrown out of their job. Can any law be more unAmerican? 

Fernando Tafoya is a professor of law in San Diego and has practiced law in California for 30 years. He holds a Bachelor of Arts degree from UT Austin; a Master of Arts degree from the University of California at Berkeley; and a Juris Doctor degree from Hastings College of the Law. He is a graduate of Bel Air High School. You can reach him at: fernandotafoya1984@gmail.com

One thought on “Anti-Protestor Legislation: The New Prior Restraint?

  1. Laws should not be written ambiguously, such as new legislation in Texas that a cop may interpret loosely in regards to wearing a face mask. I believe “thought crime” laws should be illegal and preemptive laws are definitely against our constitution. I also believe individuals rioting for personal gain, or injuring others, is inexcusable and those participants should be held liable and punished to the full extent of the law. Texas was a Republic before it joined the United States of America, another republic, a land that abides by the rule of law through a democratic process. Hurt feelings and disagreements is no excuse for the crimes some of these rioters have committed, and articles like these just fan the fires of their ignorance.

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