Michael Goldhaber, IBA US Correspondent
Wednesday 10 January 2018
Juli Briskman was cycling on the streets of Northern Virginia on the afternoon of 28 October 2017 when President Donald Trump’s motorcade passed by. The 50-year-old marketing analyst was captured on camera exercising her freedom of opinion and expression: a photo of the apparently spontaneous gesture – Briskman saluting the President with her middle finger – went viral on the internet, and Briskman told her employer, a consultant to federal contractors, that she was ‘bicycle woman.’ She was fired the next day.
Free speech advocates see Briskman’s fate as a sign of rising hostility to dissent. But perhaps ‘bicycle woman’ should consider herself lucky. The day after her protest, Kentucky proposed a bill that would give impunity to a motorist who ploughs into a protester on the street. It was the seventh US state to consider privileging the ‘right to drive’ over dissent.
“If we're sending the message that people can use cars to run over people they disagree with, that's very troubling
William J. Brennan Fellow, American Civil Liberties Union's Speech, Privacy, and Technology Project
Last March the UN Special Rapporteurs for free speech and free assembly spotlighted 16 US states weighing assorted laws to chill free expression, and urged US lawmakers to halt the ‘alarming’ trend. But after a spate of publicity, the trend has quietly continued apace. The latest grand tally finds 48 anti-protest bills pushed in 27 states during Donald Trump’s presidency.
‘Not a lot of attention is being paid to this right now,’ says Elly Page, who keeps count for the International Center for Not-for-Profit Law (ICNL), ‘and that's alarming. I would certainly not say the danger is receding.’
Vera Eidelman, William J. Brennan Fellow at the American Civil Liberties Union's Speech, Privacy, and Technology Project is equally vigilant, but finds comfort in the fact that only eight of the measures voted upon were enacted, versus fifteen defeated. ‘I'm hopeful legislators will take a message from last session. Very few passed. I hope that’s a reflection of most legislators understanding the Constitution. We'll definitely be watching [as state lawmakers reconvene in the new year].’
The enacted laws are a grab bag. North Carolina is forcing universities to punish students who disrupt campus speeches. Tennessee cracked down on picketers who block traffic. Oklahoma clamped down on marches near 'critical infrastructure'. North Dakota evacuated the Dakota access pipeline protest camp at Standing Rock, expanded the definition of trespass, and harshened penalties for ‘rioting’ and wearing masks. South Dakota empowered officials to ban assemblies that disrupt traffic or use public land.
Letting cars run over protesters wasn’t the only draconian idea to fall short. A Georgia bill would have defined protest as an act of terrorism. A Virginia bill would have authorised 20 years in prison for encouraging peaceful protest if a police officer ended up getting hurt.
Actually, advocating non-violence in Virginia very nearly became criminal. This was one of four anti-protest bills that passed state legislatures only to be blocked by the veto of a governor (Democrats in Virginia, Louisiana and Minnesota; an independent-minded Republican in Arkansas). Four close calls (and eight laws) may undercut the hope that most state lawmakers share the instincts of First Amendment advocates.
The overarching trend is to target protest tactics that succeed, says Eidelman: ‘[We’re] clamping down on what we should celebrate as a success of democracy.’
The 2016 Standing Rock camp, to protest the Dakota pipeline, engendered bills to protect infrastructure and public land. Bills that ban blocking traffic are a reaction to Black Lives Matters protests, like the one that shut a Minnesota highway after the 2015 police killing of Philando Castile. The biggest wave of bills came in the wake of the mass women’s protests organised around President Trump’s inauguration.
This summer’s Charlottesville car-killing, of a protestor against white supremacy, could not have inspired the ‘right to drive’ bills because the bills came first. But Traci Yoder of the National Lawyers Guild argues that the bills may have ‘produced Charlottesville, signaling that it's okay'. Page agrees: ‘In the wake of Charlottesville, these laws help to cultivate an atmosphere or sense of impunity that it’s not really a bad thing to strike with a car someone who’s exercising their First Amendment rights. It's pretty horrifying.’ Eidelman makes the point more cautiously: ‘If we're sending the message that people can use cars to run over people they disagree with, that's very troubling.’
Page says the US anti-protest trend comes ‘in the context of the global closure of civic space.’ The ICNL has identified about 50 restrictions on free assembly enacted around the world in the past five years, including protest bans in Kenya and Tanzania, and a law that has justified mass round-ups in Egypt. ‘We’re concerned that these US measures give leaders internationally the impression that it's okay to enact measures that unduly restrict free assembly,’ says Page. ‘It makes it harder for us to point to US as the golden example of a protector of civil and political rights.’
But new laws are not the only US challenge to free assembly. Yoder stresses that some of the biggest threats come from the increased use of existing laws by police and prosecutors. And it doesn’t help that President Trump lifted the limitations on police military gear imposed by President Obama after tanks were used to put down the 2014 racial protests against police violence in Ferguson, Missouri. Page concurs: ‘Tracking bills is only one facet of the story.’
They point to the arrest of more than 200 inauguration protesters in Washington DC, who could face decades in prison on charges of ‘conspiracy to riot.’ Prosecutors say the defendants, who include a handful of journalists, were all part of a ‘Disrupt J20’ group committed to violent tactics. The defence says they were merely in the same place at the same time. Trial for the first set of J20 defendants opened on 16 November 2017 in DC Superior Court.