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The price of protest

A flurry of legislation has been proposed across the country over the last few months in an attempt to regulate the growing number of public protests.

Photo: Fatal shooting sparks protests in Charlotte, CNN (Courtesy of Google Images)

On a cold evening in December 1773, angry colonists gathered in the Boston Harbor to speak out against the British government’s monopoly on tea.  They expressed their frustration with unfair taxation by dumping some 46 tons of tea into the harbor, thus establishing the American spirit of “sticking it to the man.”  Nearly 200 years later, more than 200,000 Americans gathered once again, this time in a more peaceful fashion, to march from the Washington Monument to the Lincoln Memorial to advocate for equal rights for African Americans.  This powerful protest, which included Martin Luther King Jr.’s “I Have a Dream” speech became a catalyst for the passage of the Civil Rights Act the next year.

Protests have continued throughout the years, from the Black Lives Matter movement to environmentalists voicing their concern over the Dakota Access Pipeline.  Only a few months ago, the Women’s March on Washington, joined by sister marches around the world, made headlines as 2.6 million women joined hands to protest the new administration in fear of cuts to reproductive, civil, and human rights.  Maybe Shakespeare got it wrong when he wrote “The lady doth protest too much.”

One could argue that the freedom of assembly is at the very foundation of the United States, and this freedom has been exercised frequently over the years for causes ranging from women’s suffrage to the labor movement to gay rights.  While history shows almost all productive protests are invariably met with conflict of some kind, the freedom to protest has recently been met with an unprecedented amount of legislative opposition.  Since President Trump took office in January, 20 states have enacted or introduced legislation to further regulate public protests.  Such regulation ranges from increased penalties for protestors to the banning of the wearing of masks.

Public safety seems to be one of the recurring rationales for bills proposed to regulate protests.  

Take for example Arkansas Senate Bill 550, introduced in March, entitled “An Act to Protect Access to Places of Employment, Rights of Way, Private Real Property, and Public Infrastructure.”  The bill would create the crime of “unlawful mass picketing,” which would impose penalties if a demonstration obstructs access to areas such as places of employment, highways and airports, or private residences.  The bill defines “mass picketing” as “the assembly of persons in the use of pickets or demonstration at or near a business, school, or private facility.”

The Arkansas bill was passed in the Senate with a vote of 18-8, which is the minimum vote needed for its passage.  In a blog post on the Arkansas Times, one frustrated citizen of Arkansas wrote, “Gov. Asa Hutchinson should veto this bill. He won’t. Like others in his party, the 2nd Amendment is a great deal more sacred than the 1st so chances are slim.”  To Governor Hutchinson’s credit, however, the bill was vetoed.  In a statement, Gov. Hutchinson wrote “While Senator Garner’s goal—public safety—is admirable, I believe this bill will have a chilling effect on free speech and the right to assemble.”  The bill was not revived and left to perish when the Arkansas Senate adjourned sine die.

Public safety seems to be one of the recurring rationales for bills proposed to regulate protests.  In an article for the ABA, Minnesota Republican Rep. Nick Zerwas, who was the chief sponsor of a measure prohibiting protests on freeways and roads near airports and trains, defended his bill as “a common-sense measure to protect safety.”  Zerwas stated, “First Amendment rights of free speech don’t extend to the center lane of a freeway.  We have to keep our freeways and airports open and running.”  The ABA points out that Zerwas allegedly introduced the measure “after two constituents reported missing medical or family appointments because of delays caused by protests.”

Yet other proposed bills attempting to regulate protests seem to have little foundation in public safety.   In January 2017, North Dakota Rep. Keith Kempenich proposed House Bill 1203, which would immunize drivers for accidentally injuring or killing protestors on highways.  The bill was introduced after Kempenich’s 72-year-old-mother-in-law was allegedly swarmed by protestors gathered on Highway 1806 in opposition of the Dakota Access Pipeline, who were “chanting, holding signs, and…jumping in front of her car.” The bill never made it out of the House, with a failing vote of 41-50.

[T]he bill would give motorists “a free pass to run over protestors without any fear of civil liability.”  

Only a few months later, in April, a similar bill, House Bill 330, was introduced in North Carolina by Representatives Burr and Millis. The bill, which immunizes drivers who exercise “due care,” was seen as a response to protests over the police shooting of Keith Lamont Scott;  these protests, at certain times violent, blocked several roads and highways in Charlotte.  While the bill does not protect drivers who were “willful or wanton,” N.C. Democratic Party Chairman Wayne Goodwin said in a statement the bill would give motorists “a free pass to run over protestors without any fear of civil liability.”  While the bill passed the House, it has been held in bill purgatory in the Senate Rules Committee for just over two months, and may never see a final vote.

It should be noted that the NC bill may actually be unnecessary, as Democratic Rep. Henry Michaux pointed out, because North Carolina is already one of just four states with a pure contributory negligence rule.  This means a party cannot be compensated for damages if they are even 1% at fault.  One can correctly assume that most judges would agree that protesting on a highway, even with good intentions, opens oneself up to contributory negligence concerns.

In addition to bills banning “unlawful mass picketing” and immunizing drivers who hit protestors, other bills have sought to regulate public protests in various other ways.  A proposed bill in Iowa would make blocking a highway a felony with up to a five year prison sentence and a fine ranging from $750 to $7,500.  Yet another bill in North Dakota was proposed to prohibit the wearing of masks, hoods, and other face coverings in certain public forums, such as on roads and highways, or while “holding any meeting or demonstration on private property of another…”  It should be noted that the final version of the North Dakota bill, which was passed and signed into law by the Governor, only prohibits wearing masks during the commission of a criminal offense.

In other cases, protestors may be forced to literally pay the price of their civil disobedience.  Take for example the case of Michigan State University student Duncan Tarr and his friend Dylan Ochala-Gorka who were ordered to pay a hefty restitution fee to construction company Precision Pipeline.  In actions which would have made Thoreau proud, the two young men decided to protest the construction of an oil pipeline by adorning U-locks around their necks and locking themselves to a work truck.  Firefighters were called to cut the locks after equipment and workers were forced to be idle for 90 minutes.  Due to Michigan’s strict crime victim restitution statute, Tarr and Ochala-Gorka were ordered to pay $39,226 for the value of the lost time.

A Black Lives Matter protest shut down stores at the Mall of America on Super Saturday last December, a day which has historically been one of the biggest shopping days for retailers.  At least 1,500 protestors were charged with misdemeanors such as trespassing and disorderly conduct.  According to an ABA article, the Mall of America initially sought $40,000 in restitution for “additional security, lost revenue, and other costs due to the protest.”  Within a few months of the protest, however, the mall announced it was dropping its request for restitution.

Social media has made planning protests more effective than ever before.

These attempts at regulation may be a result of the increasingly quick and easy organization of massive amounts of people.  Social media has made planning protests more effective than ever before.  In an article in the ABA Journal, Traci Yoder, director of education and research for the National Lawyers Guild in New York City stated, “We are certainly seeing an upsurge in social activism, from protesting in the streets and at airports to a huge increase in people contacting government representatives, attending town hall meetings and using social media to organize.”

It seems as though this increase in activism has invariably led to an increase in legislated regulation.  Whether this increased regulation is due to political agenda or is actually based on valid safety concerns remains heavily debated.  Regardless of subjective intentions, it remains crucial that the government strike an appropriate balance between its citizens’ safety and their right to stand together in protest.  Otherwise, what did we dump all that tea for?

Lizzie Yelverton, Editor-in-Chief
About Lizzie Yelverton, Editor-in-Chief (10 Articles)
Lizzie Yelverton is a third year law student and serves as Editor-in-Chief for the Campbell Law Observer. She grew up in the small farming town of Eureka, NC, before moving to Raleigh to attend North Carolina State University. In 2015, Lizzie graduated from NC State with a Bachelor of Arts in English with a minor in Philosophy. The year following her first year of law school, Lizzie worked as an intern for Senator Floyd B. McKissick, Jr. in the North Carolina General Assembly. Lizzie is the Public Relations Chair for Women in Law, as well as a member of the Student Animal Legal Defense Fund and the Campbell Law Innocence Project. She is currently working as a law clerk at the law office of Baddour, Parker, Hine, & Hale, P.C.