On the heels of the U.S. Capitol breach, Republican lawmakers in five states are capitalizing on unrest and anxiety about further violence planned for the upcoming inauguration to propose and pass anti-protest laws, which they say are intended to prevent the kind of mob Trump extremists brought to Washington. But attorneys and legal advocates say the proposed laws — two of which were introduced before January 6 but promoted after the breach — will do nothing to curb white supremacist violence, and will instead grant law enforcement increasing discretion and pressure to crack down on and harshly sentence progressive activists pushing for racial and climate justice.
Within hours of the mob attack, state lawmakers in Florida released a statement announcing renewed support for a bill that Florida Gov. Ron DeSantis proposed in September 2020. “In response to the violent mobs in Washington, D.C., the Florida House of Representatives and Senate filed identical bills to combat violence, disorder and looting in Florida,” the statement read, referring to what Florida lawmakers are calling the Combatting Violence, Disorder and Looting and Law Enforcement Protection Act.
“We are not fooled,” Florida ACLU Executive Director Micah Kubic responded swiftly in a statement. “We’re old enough to remember this bill was proposed as a direct political response to last year’s nationwide protests calling for an end to racialized violence and police brutality that disparately harms Black people. The single intent of this bill is to protect white supremacy by silencing and criminalizing Black protesters and allies who exercise their First Amendment rights in the pursuit of racial justice.”
According to CNN, the Florida legislation was indeed originally a response to President Donald Trump’s call for “law and order” during the summer of protests in response to the murders of George Floyd, Breonna Taylor, Tony McDade, and other victims of police violence. DeSantis, like many of his fellow Republican lawmakers, repeatedly framed the protests as violent.
The newly introduced Florida legislation pegs a third-degree felony charge to participating in what it describes as a “riot,” a group of three or more people engaging in a “public disturbance”; and a second-degree felony charge to those who participate in what it calls an “aggravated riot,” a similar event with nine or more people, or that fulfills at least one of a list of other criteria. In a blatant reference to the effort to take down Confederate flags and monuments, the bill also creates a new third-degree felony offense carrying a sentence of up to five years in prison for destroying or demolishing a “plaque, statue, marker, flag, banner, cenotaph, religious symbol, painting, seal, tombstone, structure name, or display.”
On January 7, Mississippi Rep. Sam C. Mims V introduced a similar bill, copying and pasting the name of the proposed Florida legislation verbatim. The same day, Nebraska Sen. Joni Albrecht introduced yet another “anti-riot” bill, which among other comparable functions, prohibits and adds new penalties to the disruption of public meetings and precludes pretrial release for anyone charged with a crime arising out of a “riot.”
Indiana Senators Michael Crider and Jim Tomes introduced a similar “unlawful assembly” bill to the state legislature on January 4. “For generations in America, we’ve seen protests and demonstrations that have sparked change, but the message can be lost as soon as violence begins to occur, and citizens’ property is destroyed,” Tomes wrote to Fox59 in a statement. The senators did not respond to comment from Truthout about the timing of the bill’s introduction, two days before the Capitol breach in Washington.
As of this writing, 26 states have anti-protest laws on the books, according to a protest law tracker by the International Center for Not-For-Profit Law, all of which have been passed over the last three-and-a-half years. The proposed laws are broad and vaguely worded, giving police wide discretion in applying each law, according to Sue Udry, executive director of the civil rights legal advocacy group Defending Rights & Dissent.
“It was so clearly a response to the protests at Standing Rock, and the particular tactics that those protesters were taking,” Udry told Truthout, referring to the flurry of state laws introduced (and defeated) in 2016, which refer to activities like those occurring at Dakota Access pipeline (DAPL) protests, such as disrupting railroads or obstructing oil and other energy infrastructure. Indigenous protesters’ and their allies’ attempts to stop the pipeline’s construction were met with water cannons, bean bag rounds, tasers and concussion grenades, as Unicorn Riot covered closely. In 2017, North Dakota lawmakers passed three anti-protest laws, for which two activists faced 110 years in prison. On May 3, 2017, lawmakers in Oklahoma became the first state to enact a “critical infrastructure” bill, defining the term as referring to facilities at any point along the fossil fuel supply chain, including but not limited to petrochemical factories, refineries and pipelines, making it a felony to “impede or inhibit operations of the facility.”
Udry says while this latest cycle of reactionary laws began in retaliation against protests at Standing Rock, they were not the first of their kind. “It’s a perennial thing,” she said. Lawmakers with corporate ties to Big Agriculture tried to crack down on protest in the 1990s, for instance, when animal rights activists were holding actions on factory farms. But states that passed such legislation, known as “Ag-Gag” laws, have begun losing court challenges on the grounds that the laws violate the First Amendment.
Fourteen of the 26 total laws that already criminalize protest do so by them protecting “critical infrastructure.” In Indiana and Mississippi, which already have these laws in place, adding additional anti-protest laws will further expand means of cracking down on progressive activists. “If you add these kinds of ‘riot enhancements,’ they just expand the perimeter of where [police] can arrest activists,” Udry said. Protesters who undertake acts of civil disobedience, such as chaining themselves to a tree along a proposed pipeline’s route, or damaging a pipeline, can already be sentenced to six years in prison in Indiana. With additional “anti-riot” legislation, those committing civil disobedience who also participated in a march, for instance, could face additional charges for obstructing traffic. Police and prosecutors are creative, Udry says, and “can almost always find ways to throw the book at protesters they don’t like.”
Mustafa Santiago Ali is vice president of environmental justice, climate and community revitalization for the National Wildlife Federation. Ali told Truthout that in his decades of organizing, he’s repeatedly witnessed “a different set of policing” depending on the skin color of protesters at a given demonstration. The way police used military-style repression on Indigenous people and their allies at Standing Rock, Ali said, is the most deplorable in his memory, and reminiscent of repression during the civil rights movement. “It seems like when you are protesting against something that folks are making a huge amount of money on, that they are more likely to have more egregious sets of sentencing actions to stop you and silence your voice.”
Legislation criminalizing protest has not only been introduced following January 6, but also passed. On January 11, Gov. Mike DeWine signed a bill criminalizing protest in Ohio. The law allows operators of energy facilities to initiate civil actions against protesters, including those nonviolently trespassing on the grounds of “critical infrastructure.” As Drilled News reports, fossil fuel industry lobbyists were deeply involved in advocating for the bill, including ExxonMobil, Marathon Petroleum and the American Petroleum Institute.
All five lawmakers who expressed support for the new anti-protest bill in Florida are members of the state’s Republican Party, which has accepted millions from the political action committee Associated Industries of Florida (AIF). According to Food and Water Action, between 2013 and 2018, AIF received $9 million from Big Energy companies, including Duke Energy and Florida Power & Light, which rely on fracked natural gas.
Whether or not the new laws are passed, the response to the Capitol breach has left no doubt that law enforcement and others in power selectively administer harsh policing according to race and political inclination. As night fell in Washington, D.C., on January 6, and armed Trump loyalists ducked out of a window they had broken and entered through, Capitol Police had only arrested 14 people in conjunction with the violent mob. In violation of a citywide curfew, dozens of Trump supporters still loitered on city streets at 6:45 pm. Attendees of the mob attack were seen decompressing at local hotels, sporting Trump paraphernalia and sipping wine. By 10 pm, the Associated Press reported, a total of 45 people had been arrested for charges related to the incident, which included curfew violations, weapons possession and assault. As of January 14, just over 100 people had been arrested in connection with the Capitol breach.
By comparison, in November 2018, 51 youth climate activists with the Sunrise Movement were arrested at a sit-in at then-House Minority Leader Nancy Pelosi’s office. The next month, over 1,000 climate activists lined the halls of Capitol Hill to demand a Green New Deal, at least 143 of whom were led out in handcuffs. Arrest numbers were even more stark at Black Lives Matter protests over the summer. Capitol Police arrested 289 protesters on the night of June 1, including nine children.
The U.S. needs to confront violent white supremacy, not clamp down on legitimate protest, according to attorney Jan Hasselman, who represents the Standing Rock Sioux in the tribe’s litigation over the Dakota Access pipeline. “Using this week’s mob attack on Congress to chill protests against pollution and environmental degradation is cynical and wrong.”