We are thrilled to announce that the next few issues of our newsletter will be written by our summer 2021 IfRFA fellows, who will each pick a First Amendment topic of interest to them. We hope you find this newsletter insightful and are deeply grateful to Makela Hayford for writing this edition!
Two’s Company, Three’s a Riot
If you’re planning on taking to the streets this June to protest police violence, make sure you don’t bring more than one friend.
Anti-protest bills across the US are expanding the definition of a riot, and the implications go beyond mere semantics. While protests are protected by the First Amendment’s freedom of expression, riots are not. Designating a gathering as a riot gives law enforcement more power and discretion to make arrests and use force. For example, Florida’s “Combating Public Disorder Act,” otherwise known as HB1, defines a riot as occurring when a person “willfully participates in a violent public disturbance involving an assembly of three or more persons.” More than 25 people? An aggravated riot. This is troublesome because if any individual at a protest engages in violence, everyone else is essentially guilty of a riot by association. Notably, violence is not defined anywhere in the bill; but, acts including blocking the sidewalk, blocking a roadway, and mob intimidation can be enough for law enforcement to declare a riot.
HB1 and similar anti-protest bills are problematic responses to the historic Black Lives Matter protests last summer. May 26th marked the one-year anniversary of the first protest following the murder of George Floyd. Since then, state lawmakers introduced at least 90 anti-protest bills in 35 states. Florida Governor Rick DeSantis celebrated HB1 as “the strongest anti-riot, pro-law enforcement legislation in the country.”
A closer look at HB1 reveals how the bill slaps steep consequences on individuals implicated in a so-called riot. To start, protesters arrested in connection with a riot must remain in jail until a court appearance. Previously, protesters could be bailed out before their first appearance. This can create capacity issues in jails when large numbers of protestors are arrested. Additionally, most protests occur during evenings and weekends. That means that individuals expressing their First Amendment rights could be subject to days of incarceration before they even see a judge. HB1 also escalates many misdemeanors, including blocking traffic, defacing historic property, and mob intimidation, to criminal felonies. The collateral consequences of a felony conviction are always profound. In Florida, a felony conviction also results in disenfranchisement. So not only can individuals be arrested and charged with felonies for expressing themselves, but they can lose their right to express themself on the ballot by voting. This part of the bill renders protestors voiceless seemingly as a consequence for voicing themselves in the first place. Third, drivers who hit demonstrators with their vehicles during a riot have a new affirmative defense to thwart civil liability. Vehicle ramming skyrocketed after 2017 when a Neo-Nazi killed Heather Heyer and injured thirty-five other protesters in Charlottesvile, Virginia. This affirmative defense excuses violence in response to protests and puts all protestors in danger. In addition to compromising the safety of protesters, anti-protest bills violate protesters’ First Amendment Rights.
Fortunately, civil rights organizations in Florida have filed a lawsuit challenging HB1. The lawsuit addresses the issues of viewpoint discrimination and chilling future speech. Viewpoint discrimination occurs when the government favors a particular message or content over another. HB1 is problematic in this regard because it originated in response to last summer’s protests, and it targets Black Lives Matter organizers and protesters because of their message. The lawsuit also addresses HB1’s chilling effects, arguing that because HB1 is very broad and involves harsh punishments, it will discourage people from protesting and exercising their First Amendment rights. The plaintiffs consist of many Black-led organizations including the Florida NAACP, Dream Defenders, and the Black Collective. These groups participate in political actions and rely on community organizing as well as protesting.
As anti-protest bills emerge, it is important for organizers and demonstrators to be aware of existing laws in their states and to proactively protect BIPOC and QTPOC at protests. The US Protest Law Tracker is a great resource for following the status of protest-related legislation at the state and federal levels. In addition to awareness, resistance is key. Communities have defeated dozens of proposed anti-protest legislation in many states over the past year. Still, there are at least 60 anti-protest bills still pending across the country and 34 are already enacted.
Resources
● US Protest Law Tracker: The International Center for Not-for-profit Law hosts the US Protest Law Tracker which compiles legal initiatives since November 2016 that restrict the right to peaceful assembly.
● What does HB1 do?: The Florida ACLU created a summary of HB1 with recommendations to avoid unlawful arrest.
● Vehicle-Ramming Incidents During George Floyd Protests: Wikipedia users documented vehicle ramming incidents during the George Floyd Protests including date, location, and available details.
Makela Asantewaa Hayford is a second-year law student at Case Western Reserve University School of Law in Cleveland, Ohio. She is the proud recipient of the Congressman Louis Stokes Congressional Black Caucus Scholarship for her undergraduate degree and the Congresswoman Stephanie Tubbs Jones Public Interest Law Scholarship for law school. She earned her B.A. in Sociology with minors in African American Studies, Social Justice, and Organizational Behavior in 2018. Makela is interested in civil litigation as a tool for Social Justice.
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What's happening with IfRFA?
We are happy to announce that IfRFA is having a public event next week on June 17th at 12:00pm ET.
Black to the Future: Policing and the First Amendment. Speech regulation is traditionally presented as something done on the level of legislatures, not street level bureaucrats. But as modern day movements like Black Lives Matter take the streets, police are the front line of First Amendment regulations. The future of policing is thus the future of the First Amendment. Join IfRFA in hearing from Prof. Etienne Toussaint on his work on “Blackness as fighting words” and how police violence against protesters renders free speech illusory, and then from Prof. Bennett Capers on an afrofuturist vision of policing, and with it, a more racially equitable environment for speech and protest.
Speakers:
▪ Bennett Capers
▪ Etienne C. Toussaint
▪ Iltaff Bala
▪ Kendra Albert
Register for the event here! This webinar will be recorded and the recording will be shared a few days after the event on our website at: https://ifrfa.org/events. Follow us on Twitter at: @ifrfa.