Janine Jackson interviewed the International Center for Not-for-Profit-Law’s Elly Page about anti-protest legislation for the April 23, 2021, episode of CounterSpin. This is a lightly edited transcript.
Brookings Institution (7/8/20)
Janine Jackson: The guilty verdict in the Derek Chauvin case did not leave things as settled as some would like to hope. But one thing was made clear: the power of protest. There is simply no way the prosecution of a police officer for the on-duty killing of a Black man would have gone so far without millions upon millions of people, around this country and the world, going out into the street. Some reckon protests over George Floyd’s murder were the largest in this country’s history, and the most diverse—and that’s why some are eager to shut that down.
Listeners may know about Florida’s HB1, what Gov. Ron DeSantis claims is a law to crack down on “agitators.” But that’s just the tip of the iceberg of state and federal efforts to prevent US citizens from doing what we all know we will only be doing more and more of: coming together publicly, using our numbers to fight for societal change.
Elly Page is senior legal advisor at the International Center for Not-for-Profit Law and founder of ICNL’s US Protest Law Tracker, which is just what it sounds like. She joins us now by phone from Washington, DC. Welcome to CounterSpin, Elly Page.
Elly Page: Thanks, Janine.
JJ: Let’s leap right in. The tracker launched in 2016, I’m guessing for reasons, and I’m guessing also that the reasons have only increased since then. What are the sorts of things that you are seeing that concern you?
EP: Yeah, so thanks. We have been, as you say, tracking these anti-protest laws and bills for over four years now. And, really, what we’ve seen since this last summer is a distinct escalation from prior years. We’ve seen over 90 bills introduced in 35 states, since last summer and the killing of George Floyd, that would restrict or chill the right to peacefully assemble and protest. It’s an unprecedented number, both in terms of the number of bills that have been introduced and the extreme lengths they go to to repress protests and discourage people from turning out.
JJ: Let’s talk a little bit about more of that. The degree they go to, it’s partly the way they define “riot,” the way they define “violence,” but it’s also like the extension of what is going to be a crime. Talk a little bit more about that.
Elly Page: “These bills…use vague, sweeping language to define new criminal offenses, or redefine existing ones, related to conduct that may occur during a protest.”
EP: Absolutely, yeah. A common thread throughout these bills is that they use vague, sweeping language to define new criminal offenses, or redefine existing ones, related to conduct that may occur during a protest.
So we’ve seen bills targeting “taunting” police in Ohio and Kentucky. The new law in Florida that contains this new criminal offense around mob intimidation, which is sweepingly defined—you only need three people who are trying to get another person to do something, or to have a particular viewpoint, which sounds a lot like any kind of protest, where you’re trying to convince someone to do or think differently. Broad prohibitions on inciting or encouraging or aiding unlawful assemblies; obviously those cast a wide net.
And in many cases, these new bills and laws are relying on states’ existing definitions of “rioting,” which, in almost all states, are already very broadly defined in ways that can capture a completely peaceful protest. In many cases, you only need a small number of people, whereas most of us conceive of a “riot” as kind of a large group. In most instances, you don’t actually have to cause any damage or injure anyone for it to be a riot; you only need to pose a threat or a danger of something, property being damaged or someone being injured. This is one of the many ways that these sweeping definitions can cover, again, completely peaceful, nonviolent protest activity.
JJ: The problem that I think a lot of folks could see is the broad sweep of it. And yet at the same time—it’s not a “but,” it’s an “and”—and at the same time, we see that they’re actually specifically targeted. Florida’s law is about Black Lives Matter; it’s not about January 6, you know? We know that there are particular targets, and we shouldn’t pretend we don’t know.
EP: Right. And that’s something that we’ve seen, time and time again in this tracking project, that lawmakers are really introducing these anti-protest initiatives in the aftermath of distinct protest movements. And it’s often clear from the text of the bills themselves, as well as from what lawmakers say, what they’re targeting. And that’s true of, certainly, this wave of legislation.
I mean, you have bill after bill clearly targeting protests that take place in the streets, over 40 bills that would increase the penalty for protests that block traffic. You have, I think, 15 or so that include provisions that create new protections for drivers who hit protesters with their cars. You have provisions that target protests where there’s even nominal damage, like graffiti or even chalking, of public property, including monuments.
So all these anti-protest provisions are often accompanied by provisions that would penalize local governments that try to decrease the budget for their police departments, sort of anti- defund the police provisions. It’s easy to say that the target of these bills is pretty clear.
JJ: I know that another aspect that you look at is the methods, just the gear, the incentivization to use that gear, the militarization, you know. I wonder if you could talk a little bit about that, which of course has a direct impact on all the things we’re talking about.
EP: Yeah, absolutely. I think, as Americans saw last summer, it’s not just about the law, it’s very much about the way the law is enforced. And we saw very clearly last summer, the way many of our police departments have been militarized, have access to military-grade weaponry, and how that has been used, oftentimes overly aggressively, in response to protesters.
And we certainly have seen legislative attempts going in the opposite direction, that would try to make it harder, that would try to stop that pipeline of military-grade equipment. Yes, that’s right.
JJ: I think folks are careful around the language of “reform,” you know? I think a lot of folks are ready for a conversation about what “public safety” really means, and really a bigger vision. But that doesn’t mean that there isn’t material change that could happen that could be meaningful, that could maybe keep somebody alive. And I’m wondering what you see, legislatively, as a response to the problems you track. Statewide, federalwide, what do you see as pushback on this wave of legislation?
St. Louis Post-Dispatch photo of police in Ferguson firing tear gas (photo: David Carson).
EP: Fortunately, we have seen initiatives, most often at the municipal level, that are trying to better protect protesters in some instances. So we’ve seen lots of proposals to restrict the use of so-called “less lethal weapons,” such as tear gas, projectiles, rubber bullets, these kinds of things. We have seen attempts, both at the local and federal level, again, addressing this issue of local police departments’ access to military-grade weapons. There was a lot of concern last summer about the deployment of federal agents to respond to local protests.
And so there are initiatives ongoing at the federal level to address that as well, and restrict the ability of federal agents to intervene in certain circumstances in a protest that’s completely local.
JJ: I know that your work also involves an international focus, and I think it’s interesting that, for a lot of US citizens, the idea is that the United States, you know, “We have so much freedom we export it. We model it around the world. We’re the shining city on the hill.”
Americans don’t often see themselves as existing in an international context. But in terms of free speech, or civil liberties, what would someone with a global perspective on this set of issues say to that, in 2021, in terms of the US seeing itself as a model of free expression?
EP: Yeah, I think it’s really important that Americans don’t take these freedoms for granted, and don’t take for granted that they can freely exercise their First Amendment rights and protest. Working internationally, we’ve seen how using restrictive laws to suppress protests is really a favorite tactic of governments that are trying to minimize and repress dissent around the world. So whether that’s in Russia, or in Egypt, or in Hong Kong, when governments are looking to disrupt or suppress opposition movements, banning or restricting protests is one of the first tools they reach for.
JJ: We’ve been speaking with Elly Page, legal advisor at the International Center for Not-for-Profit Law. You can find them and the US Protest Law Tracker online at ICNL.org. Elly Page, thank you so much for joining us this week on CounterSpin.
EP: Great, thank you for having me.
