On Recent Legislation to Stifle Protest and What to Do

Chicago Antiwar Coalition (CWAC) Statement, December 9, 2021

The U.S. ruling class has always moved to stifle protest against its anti-people actions. These days it is renewing that effort in the wake of 20 million people coming out against the police murder of George Floyd, large scale opposition to government tolerated and encouraged spoiling of the environment; lack of serious action on global warming/climate change, on working conditions, and on other issues. Historically, suppression of dissent has been the work of both Republicans and Democrats.

Since 2017, 20 states have enacted 36 laws that restrict the right to lawful assembly and 52 more are pending – all of them in states with Republican controlled legislatures. Although there is some variance, all of these laws increase penalties for possible damage to public property or for blocking streets and sidewalks (“Freedom of Assembly Is Under Threat,” Chicago Tribune, 9.30.21).

In many cases, acts previously classified as misdemeanors have been reclassified as felonies. For example, in nearly every state, criminal trespassing is typically a misdemeanor, carrying a relatively light punishment of jail time or a fine. But a new law in Arkansas makes entering or remaining on a critical infrastructure site a Class D felony, punishable by a maximum of six years in prison and a $10,000 fine. And this sort of thing is happening in other states.

The common trends among new statutes are expanded definitions of “riot” and increased severity of the punishments for crimes such as rioting, disrupting traffic, trespassing on public property and defacing public monuments.

In particular, several recent laws have made blocking traffic during protests more serious offenses. Arkansas, Iowa, Oklahoma, South Dakota and Tennessee all passed statutes increasing the maximum penalty to one year in jail for people who obstruct sidewalks and streets. In Iowa, if the obstruction occurs during a “riot,” the offense becomes a Class D felony and the maximum penalty increases to five years in prison and a $7,500 fine. (“State Anti- Protest Laws and Their Constitutional Implications,” lawfareblog.com, 10.25.21).

It is clear that these laws, enacted and pending, emanate from the most reactionary elements of the U.S. ruling class. The intended targets fall into two broad categories:

1) those who protest against the proliferation of oil  and gas pipelines, e.g. the Dakota Access Pipeline and other forms of energy infrastructure that cause environmental degradation, and 2) those engaging in social justice protests, most notably, Black Lives Matter actions that grew in scope after the police murder of George Floyd in late May 2020 (lawfareblog.com).

It should be noted that 96% of the BLM protests involved no property damage or injuries to police; where there was violence, it was frequently instigated by the police themselves or by counter protesters according to the Washington Post (reported in the New York Times, “G.O.P. Bills Target Protesters and Absolve Motorists Who hit Them,” 6.16.21).

There is already a raft of laws on the books at both state and federal levels to deal with rioting, and even some police have said that they don’t need any more “tools.”

The language of many of the new laws is in many cases extremely vague and leaves unclear what speech or conduct is prohibited, thus providing an avenue for challenge on constitutional grounds. In 2019 for example, South Dakota enacted a statute that expanded civil liability to include individuals and organizations who fund protests. This liability even extends to persons who do not “personally participate in any riot but direct, advise, encourage, or solicit others who are participants to acts of force or violence.” Neither “advice” or “encouragement” was defined, and many of the law’s provisions were judged to be unconstitutional in federal district court.   Not so easily discouraged, however, the same state legislature passed an amended version of this law in 2020 with language intended to pass legal muster (lawfareblog.com).

In a somewhat ironic twist, some involved in social justice work have expressed concern about the November 22 verdict in the civil liability and conspiracy trial of the 2017 neo-Nazi/ white nationalist Charlottesville riot organizers.

They were held liable for $25.3 million in state civil damages. The jury found that all defendants had violated a Virginia state conspiracy law. The judge in the case, according to a New York Times article (“Leaders of Right-Wing Charlottesville Rally Are Held Liable by a Jury,” 11.24.21), ignored the argument of the defendants when they said they were not responsible for the car attack on protesters and murder of one protester, that they did not know James A. Fields, the driver.

The instructions of the judge to the jury, as summarized by The New York Times, raise serious questions. He said there can be conspiracy in an action even if participants did not make an agreement for a certain action and did not even know each other, did not cause any violence themselves, and did not foresee any violence that occurred.

The concern among progressives is that this civil liability judgment could become precedent for, for example, the South Dakota legislation mentioned above that hold accountable any those who fund a protest for any actions that take place at the protest. It could be used against leaders of unions of striking workers and civil rights and environmental justice actions. Or even elevated to the status of criminal liability indictments.

This has already become the law in other places. In Montana, for example, a statute states that “an organization found to be in a conspiracy” with defendants convicted under the critical infrastructure law is liable for fines up to 10 times the amount imposed on the defendants themselves.

Organizations in North Dakota that are found to have “conspired” with defendants to violate the critical infrastructure law must pay the same amount imposed as a fine on each individual, with the total amount not to exceed $100,000. In Indiana, an individual found to have “conspired” with a protester whose actions violate the law faces a maximum fine of $100,000.

The current round of repressive legislation has been enacted by state legislatures, but such laws also exist at the federal level. The federal Anti-Riot Act, intended as retaliation against the Civil Rights Movement, was included as part of the broader 1968 Civil Rights Act as a compromise to garner conservative senatorial votes for its passage (lawfareblog.com)

Another example at the federal level is how in 2016 President Obama suspended habeas corpus for protesters aligned with the Standing Rock Indian Reservation who were preventing construction of a section of the Dakota Access oil pipeline. (Habeas corpus is the judicial process for determining if someone has been arrested and detained based on some legal reason and is a basic part of U.S. law.)

The new state laws aim to restrict protest to placid events far from symbolic spaces such as government buildings and military bases (Chicago Tribune 9.30.21 cited earlier).

Some of the most egregious laws eliminate liability for motorists who injure or kill protesters. Claims that they felt threatened may, under some laws, be considered as a valid defense for the motorist.

West Virginia’s HB 4618 requires bystanders to help disperse an unlawful assembly or failing to do this, “be deemed rioters” (Chicago Tribune 9.30.21). This may strike many of us as ludicrous, but where the most reactionary elements of the ruling class hold political power, the threat against civil liberties is real.

On the legal front, these laws will have to be contested on an individual basis.

On the political front, the Chicago Anti-War Coalition (CAWC) encourages resistance to all anti-working class, racist, environmentally destructive, or anti-democratic laws and continuing the struggle for peace and environmental and racial justice. We need to see that repressive legislation is part of the way the U.S. capitalist ruling system works, and work to open up a path to replace that system with a system of democracy and justice.


Historical Background

The 1968 Anti-Riot Act and the current wave of repressive legislation hostile to First Amendment expression have a history dating back to the earliest years of the U.S. Below we will highlight a few of them.

Alien and Sedition Acts of 1798

In 1798 the Federalist Party controlled 5th Congress passed four acts signed into law by President John Adams. Collectively these are popularly known as the Alien and Sedition Acts. They were enacted during an undeclared naval war with revolutionary France, the Quasi-War (Wikipedia). The Federalists were the party of northern commercial interests and the more conservative party of that era. The acts were an expression of their fear of and antipathy toward the other major party, the Democratic-Republicans, which identified with the French Revolution.

Political agitation, including demands by some for secession from the recently constituted U.S. government, was blamed by the Federalists on immigrants sympathetic to the French. In line with this, the Adams administration prepared lists of non-citizens (aliens) for deportation, and many fled the country although Adams never signed any deportation orders] (Wikipedia).

Due to protests across the country, the Alien and Sedition Acts became a major issue in the election of 1800, which the Democratic-Republicans won. Upon assuming office in 1801, President Jefferson pardoned those still serving sentences under the highly controversial Sedition Acts. The most severe sentence imposed, 18 months, was the outcome of the June 1799 trial of David Brown who led a Dedham, Massachusetts group in setting up a liberty pole with slogans that included No Stamp Act, No Sedition Act, No Alien Bills, No Land Tax and Downfall to the Tyrants of America.

Two of the four acts passed in 1798 had expired by 1801. However, one, the Alien Enemies Act, remains on the books to this day as part of the U.S. war and national defense statutes. The law provided the legal basis after the bombing of Pearl Harbor by Japan for the internment under President Franklin Roosevelt of non-citizens deemed alien enemies who were German, Japanese, and Italian nationals. (This is distinct from the internment under Executive Order 9066 of 110,000 U.S. citizens of Japanese ancestry who resided on the Pacific Coast.)

Espionage Act of 1917 and Sedition Act of 1918

The Espionage Act was passed two months after the U.S. entered World War I on April 6, 1917. Its intent was to prohibit interference with U.S. military operations and recruitment, to prevent insubordination in the military, and to prevent or inhibit support of U.S. enemies during wartime (Wikipedia). Nowadays wartime could be construed as any time or all of the time. The act was upheld in a 1919 Supreme Court case Schenck v United States and remains on the books today.

The list of those prosecuted under the Espionage Act includes Pentagon Papers whistleblower Daniel Ellsberg, Cablegate whistleblower Chelsea Manning, WikiLeaks founder Julian Assange, whistleblower Edward Snowden, and Julius and Ethel Rosenberg. The Rosenbergs were executed in 1953.

Assange has been hounded by the U.S. and British governments for more than nine years for revealing details of U.S. foreign policy including murder of civilians in Iraq by the U.S. military. The aim obviously was to curtail and destabilize opposition to a world order based on privately held finance and industrial capital. Assange is currently in imminent danger of being extradited from London to the U.S. for prosecution under the Espionage Act.

The Sedition Act of 1918 comprised a series of amendments to the Espionage Act that expanded the list of offenses that could be prosecuted. Speech and other expressions of opinion that cast the U.S. government or the war effort in a negative light or that discouraged the purchase of government issued bonds became prosecutable offenses (Wikipedia).  While these amendments were being considered, there was little opposition in Congress under Democratic President Wilson to them, and leading newspapers encouraged their passage.

The bulk of enforcement of the Sedition Act’s provisions occurred in the Western states with the intent of disrupting and suppressing the activities of the International Workers of the World (IWW). IWW activist Marie Equi was arrested for a speech she gave in Portland, Oregon and was convicted after WW1 had ended even though it was supposedly to be operative as a war measure.

Socialist Party leader Eugene V. Debs was arrested in June, 1918 for disrupting government conscription efforts. He was imprisoned from April, 1919 until December,1921 when his ten year sentence was commuted to time served by President Harding. Debs ran as the Socialist Party candidate in the1920 presidential election.

After WW1 finally ended in November,1918, the federal government wasn’t done with suppressing political dissent. Even without authorization under the Sedition Act, Wilson’s Attorney General, A. Mitchell Palmer, had more than ten thousand anarchists and socialists and, often, anyone else who happened to be in the room when the cops arrived, rounded up and sometimes detained.  Of those arrestees who were not citizens 556 were deported.  In part due to their extreme brutality, the Palmer Raids garnered criticism even from within the Wilson administration, particularly from the Labor Department, which in that period had to sign off on deportations. The Sedition Act was repealed by Congress along with numerous other wartime measures in December, 1920.

Alien Registration Act (Smith Act) – 1940

In 1940, the Smith Act, formally titled the Alien Registration Act, was passed during the Democrat Roosevelt Administration in anticipation of the U.S. likely entering WW2. Its main provision was to criminalize advocacy of the violent overthrow of the U.S. government or to be a member of any group doing this (britannica.com). The first Smith Act prosecutions targeted the leaders of the Socialist Workers Party which was opposed to U.S. participation in the war. After the war, the law was used to criminalize the national and state leadership of the Communist Party.

Convictions obtained under the Smith Act were sustained in 1949 by the Supreme Court, and the constitutionality of the act itself was upheld by the same court in 1951 (Dennis v. United States). As the McCarthy era waned somewhat, a narrower interpretation of the act’s provisions was adopted by the Supreme Court in Yates v. United States (1957) wherein advocacy was henceforth to be understood as actual, not merely theoretical, incitement to unlawful action. The Yates decision was more consistent than the interpretation made in Dennis with the “clear and present danger” rule argued by Oliver Wendell Holmes in the above mentioned 1919 Schenck case, a position he took even while upholding the constitutionality of the Espionage Act (britannica.com).

McCarran Internal Security Act -1950

Four months into the Korean War, at the height of the McCarthy era attacks on labor and the Left, the Democratic Party controlled Congress passed the McCarran Internal Security Act over the veto by President Truman, who foresaw its dubious legality. The act required the Communist Party and 24 other organizations identified as communist to register with the U.S. Justice Department.

An agency was set up for administering this attack on the democratic right of association, the Subversive Activities Control Board (SACB) which on the petition of the Attorney General could order an organization to register and submit information on its membership, finances, and activities.

Importantly, the McCarran Act authorized the President, in the event of invasion, declaration of war, or insurrection in aid of a foreign enemy, to arrest and detain persons who he believed might engage in espionage or sabotage. This was the act’s preventive detention provision (mtsu.edu/first-amendment/article/1047/mccarran-intenal-security-act-of-1950).

This and other provisions of the McCarran Act were gradually voided by a series of Supreme Court decisions and acts of Congress. The requirement that communist organizations register with the Attorney General was removed by Congress in 1968, and by 1973 the SACB was no longer funded in the national budget (mtsu.edu)

Repression in Chicago under Rahm Emanuel as mayor

By 2011/12 more advanced technologies had been brought into play by the ruling class in the form of increased surveillance intended to discourage and suppress popular protest movements. The old standby, raw police violence, was still in vogue as well.

The key events leading up to the Chicago NATO Summit in May 2012 included a series of attacks by police aimed at breaking up the largely peaceful Occupy Movement’s marches and encampments. (The Occupy Movements were organized around a mainly economic agenda that denounced “the one percent” of the U.S. population that controls the lion’s share of the country’s wealth and demanded that this be shared more equitably.)

As summer of 2011 waned, the ruling class and its police switched from a policy of semi tolerance toward Occupy to one of open hostility. In Chicago on October 15, 300 people, mostly youth, were arrested for overstaying a 10 o’clock curfew, violating a mere park district ordinance ( “Outlawing Dissent: Rahm Emanuel’s New Regime” by Bernard Harcourt, The Guardian, 1.19.12).

Not long after this, in Oakland, police fired tear gas and hard rubber bullets at Occupy marchers trying to return to their home base at Frank Ogawa Plaza. 85 people were arrested (The Guardian, 10.26.11).

Eight months after the dissolution of the Occupy Movement had been largely achieved, law clinics at NYU, Fordham, Harvard and Stanford investigating abuse by New York City police made 14 specific allegations of NYPD brutality against members of that movement ( “14 Specific Allegations of NYPD Brutality During Occupy Wall Street” by Conor Friedersdorf, The Atlantic, 7.25.12).

Originally the Chicago NATO Summit was to have been held in tandem with a G8 Summit.  Those attending G8 are the top political leaders of the capitalist word along with their entourage and are less directly involved than NATO with the minutiae of military planning. In probable response to plans for protest demonstrations in Chicago, two months before the scheduled meetings, in March 2012, the Obama administration relocated the G8 meeting to Bethesda, Maryland.

In December 2011, when both events were still planned to be held Chicago, Mayor Rahm Emanuel introduced in City Council an ordinance whose title in part included the phrase “To Ensure Safe and Effective Operations” for the upcoming events (chicago.gov/city/en/mayor/press_room/press_releases/2011/mayor_emanuel_introduces-ordinance- to-ensure). Sounds benign, right?

The substantial content of the ordinance passed by the City Council on January 18, 2012 contains the following points:

  1. increases the range of fines for resisting a police officer or aiding escape from $25- $500 to $200-$1000
  2. amends hours that city parks are open. New hours are from 6 a.m. to 11 p.m.
  3. clarifies Chicago Police Department (CPD) ability to enter into agreements with “necessary law enforcement agencies to deputize law enforcement personnel
  4. allows the mayor or his designees to execute limited agreements with public and private entities for goods, work, or services regarding planning, security, logistics, and other aspects of hosting

The third point enabled Emanuel to increase his office’s police powers and deploy police surveillance throughout the city.  This in combination with point four authorized him to purchase equipment for this and other purposes (Wikipedia – 2012 Chicago Summit). Purchases made relative to point four above profited Emanuel’s supporters and campaign donors in the private sector. The passage of the ordinance exemplifies the increasing degree of integration of the private sector with the apparatus of state repression. ( “Outlawing Dissent,” The Guardian, 1.19.12).

Giving the Chicago Police Department free rein to enter agreements “with necessary law enforcement agencies” permitted the involvement of a wide range of federal police including the FBI, the Drug Enforcement Agency, the Bureau of Alcohol Firearms and Tobacco as well as county and state police. “As one commentator suggests the final catch-all allows Emanuel to hire ‘anyone he wants, be they rent-a cops, Blackwater goons on domestic duty, or whatever’” ( “Outlawing Dissent,” The Guardian, 1.19.12).

In addition, new restrictions on parades, included a requirement that organizers purchase insurance costing $1 million and another requiring advance registration of every larger banner that would need more than one person to hold it. Organizers were also to provide details regarding sound equipment. Of course, violations of these requirements could provide the basis for arrests and fines.

It is important to note that the ordinance provisions are permanent and weren’t to expire with the conclusion of the NATO Summit (Wikipedia – 2012 Chicago Summit). The real intent of such laws was and continues to be to make political expression critical of imperialism’s agenda more onerous and difficult.

*Featured Image: Police officers guarding the Trump International Hotel & Tower hold back protesters in the Loop on May 30, 2020, during a rally and march to remember the May 25 killing of George Floyd by a Minneapolis police officer. (John J. Kim/Chicago Tribune

Chicago Anti-War Coalition (CAWC)


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