Punishing Grassroots Action

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble… – US Constitution, Amendment 1

Opponents of grassroots movements have a new policy strategy in addition to preemption – laws punishing participation in rallies, protests, marches, and other forms of “assembly” that are generally protected by the First Amendment to the US Constitution.

A recent wave of state legislative proposals seeks to criminalize or impose civil penalties on certain forms of speech and assembly, ranging from criminalizing protests as “economic terrorism” to immunizing automobile drivers who injure or kill protesters.

 Notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages. –  North Dakota HB 1203 (2017)

While many of these proposals, if adopted, may ultimately be found unconstitutional, they nonetheless have the potential (and intent) to discourage participation in otherwise lawful rallies, marches, and protests.

The March on Washington (1963)

So-called “direct action” has played an important role in grassroots movements from the civil rights movement of the 1960’s to protecting casino workers from secondhand tobacco smoke today. Rallies, marches and other public events provide an opportunity for advocates to voice their concerns about, and solutions to, health and safety threats; educate the public about those threats and potential solutions; and reach policymakers. Criminalizing or otherwise punishing these actions can negatively impact grassroots engagement and democratic participation.

Photo credit: Brooke Anderson

At Grassroots Change, we believe that grassroots movements need both passion and smart strategies
to succeed. Our movement building infographic, based on both practical experience and research, illustrates how movements can transform the passion for change into a clear, actionable vision that energizes grassroots advocates. Protests, rallies, and other events can be an important part of that process, and therefore if activists lose their ability to peacefully join together, their movements may lose their voice.

Grassroots Change has documented the role of direct action in a number of grassroots movements. In our case study, How One Texas Town Defeated the Oil & Gas Industry, we report on the central role of protests and civil disobedience in Denton, Texas’ movement to ban fracking. After Denton passed a ballot measure banning fracking in 2014, the Texas legislature preempted local authority over all aspects of oil & gas regulation in early 2015.

Protesting fracking following the passage of oil & gas preemption in Texas. Credit: Frack Free Denton.

Residents launched a civil disobedience campaign throughout the summer of 2015, organizing sit-ins and blocking fracking operations. The message was clear: “If you want to frack here, you have to roll over us and local democracy.”

In 2016, students at the University of Texas at Austin organized an unusual, and effective, protest in opposition to Texas’ “campus carry” law, which preempted firearm bans at all public colleges in Texas, thus allowing concealed handguns on campuses, including in dorms and classrooms. Protesters carried sex toys in public to draw attention to the absurdity of carrying handguns (legal under the newly-adopted campus carry law) versus carrying sex toys (illegal in Texas). According to one student protestor, “We wanted something fun that [young] people could really engage in. Because it’s hard to get involved in the political process at our age, people our age don’t tend to vote or get involved, and this is so easy.”

The Standing Rock protest against the Dakota Access Pipeline (DAPL) is perhaps the most well known example of direct action in recent years. Among other actions, the Native American “water protectors,” as they called themselves, used prayer and meditation, and blocked roads, to promote awareness of the potential health, cultural, and environmental impacts of the pipeline construction and route. According to the National Lawyers Guild, “bills in… North Dakota (some of the earliest) were clearly introduced as a direct response to… the resistance by Indigenous water protectors at Standing Rock.”

The current wave of proposals targeting protests and other gatherings includes:

Penalties for obstructing traffic & immunity from liability for automobile injuries or deaths

A motor vehicle operator who unintentionally causes injury or death to a person who obstructs or interferes with the regular flow of vehicular traffic… is not liable for such injury or death. – Florida SB 1096 (2017)

  • Florida (Fines and criminal sanctions for obstructing traffic; Immunity for drivers who injure or kill protestors)
  • Iowa (Fines and criminal sanctions for obstructing traffic)
  • Minnesota (Fines and criminal sanctions for obstructing traffic)
  • Mississippi (Fines and criminal sanctions for obstructing traffic)
  • North Dakota (Immunity for drivers who injure or kill protesters)
  • South Dakota (Fines and criminal sanctions for obstructing traffic)
  • Tennessee (Immunity for drivers who injure or kill protesters)

Penalties for tampering with or trespassing on infrastructure such as railways and pipelines 

Any person who in any manner knowingly destroys, breaks, removes, or otherwise tampers with or attempts to destroy, break, remove, or otherwise tamper with any equipment associated with oil or gas gathering operations commits a class 6 FELONY. – Colorado SB 17-035 (2017)

  • Colorado (Tampering with equipment associated with Oil & Gas operations)
  • Oklahoma (Trespassing on or tampering with a “critical infrastructure facility”)

Creating the crime of economic terrorism

Penalties for picketing or protesting

Other proposals

  • Missouri (Penalties for wearing a mask)
  • Virginia (Penalties for refusing to leave “any riot or unlawful assembly”)
  • Arizona (Adding “rioting” to organized crime statutes and authorizing the seizure of assets of those involved in a protest)
  • Oregon (Requiring community colleges to expel students for participating in a “violent riot”)

The future of these proposals is unclear. Some bills have already been rejected, as in the case of Arizona and Virginia, or amended, as in the case of Indiana. According to the ACLU, Arizona’s SB 1142 has passed the State Senate but is not expected to move forward in the House and Michigan’s proposal has passed the House but is not expected to pass.

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