Michael A. Cohen
“The right of the people peaceably to assemble, and to petition the government for a redress of grievances” is a fundamental right of all Americans. It sits alongside freedom of speech, religion and the press in the First Amendment to the Constitution.
Yet, increasingly, in red-state America it is under siege. In 45 states, Republican legislators are pushing through draconian laws to limit the ability of Americans to peacefully assemble and engage in political protest. The new laws, many of them a direct response to last summer’s Black Lives Matter protests, not only risk having a chilling effect on political protest – they also are emblematic of the GOP’s increasingly authoritarian bent.
Perhaps the most extreme example is in Oklahoma, where the Republican-controlled state legislature and GOP governor granted civil and criminal immunity to drivers who “unintentionally” injure or kill protesters while driving away from a riot. In effect, Oklahoma Republicans are making it easier for drivers to run over and potentially kill political protesters.
Height of Republican hypocrisy
Not to be outdone, Florida Republicans enacted a similar law as part of a larger “anti-riot” bill. Floridians who block traffic, even temporarily, could now be looking at up to 15 years in jail if convicted. The law also now classifies a public gathering of three people or more as a “riot” and anyone who chooses to participate in such a protest can now be charged with a felony – even if their behavior is not violent.
In Arkansas, a riot can involve as few as two people engaged in “tumultuous” conduct that creates a “substantial risk” of “public alarm.” Those convicted of rioting will also be required to pay restitution – and would face a mandatory 30 days in prison.
InTennessee, simply joining a protest in which there is “isolated pushing” and no one is hurt would now be considered a crime.
The Volunteer State is a trailblazer in anti-protest laws. After Black Lives Matter demonstrators gathered for weeks on the grounds of the state Capitol last year, the Republican-dominated legislature passed a bill that made it a felony to camp out on state property. The bill also made it a crime to make it “unreasonably inconvenient” to use a street or sidewalk – and those found guilty could face up to one year in jail. The governor signed it last August.
Other states have passed laws making it illegal to demonstrate near “critical infrastructure” such as gas and oil pipelines. In Florida, it’s now a third-degree felony, punishable up to five years in prison, to deface a monument. In Arkansas, such behavior is considered an “act of terrorism.”
What is most ironic about these laws – or more accurately hypocritical – is that they are happening at the same time that congressional Republicans are excusing the deadly insurrection at the U.S. Capitol on Jan. 6.
The rioters who stormed the Capitol and forced members of Congress to fear for their lives were merely engaged in a “normal tourist visit,” said Georgia Rep. Andrew Clyde. The protesters were just a “mob of misfits,” according to Texas Rep. Pat Fallon. Investigating their misdeeds amounts to “harassing peaceful patriots,” said Arizona Rep. Paul Gosar. The day’s events were “by and large” a peaceful protest, or so says Wisconsin Sen. Ron Johnson.
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These easily provable lies have become the GOP’s latest talking points in explaining away the events of Jan. 6 – and spurred Republicans in the Senate to block the creation of a bipartisan commission to investigate the insurrection.
Whether anyone would be arrested and prosecuted under these laws or they could possibly hold up to constitutional muster is another question altogether, but enforcing the law is hardly the point. The goal of these bills is to make protesters question their decision to demonstrate in the first place.
Sweeping effort to silence rivals
How many Americans would want to risk substantial jail time merely for peacefully participating in a demonstration that the police now have broad discretion to define as a riot?
These new laws are not occurring in a vacuum. They are part of a sweeping anti-democratic effort by red-state Republicans to silence and intimidate their political rivals. Since the 2020 election, Republican-controlled legislatures in at least 14 states have passed tough new voting laws that make it more difficult for people to cast a ballot. These laws mostly affect voters of color, who are far more likely to vote Democratic.
In a host of states, Republicans have used aggressive gerrymandering to make it virtually impossible for Democrats to win back control of legislatures. With redistricting taking place this year, we can expect these efforts to continue and enshrine GOP dominance.
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It’s bad enough that Republicans, writ large, are embracing former President Donald Trump’s Big Lie that he “won” the 2020 election, and pushing out those who would dare to point out his dishonesty. On the state level, they are now seeking to silence and intimidate their political critics in order to maintain political power.
By cracking down on political protest and demonstrations, the GOP is ramping up these efforts in a new and dangerous direction. The party is, in effect, seeking to abrogate one of the most basic and fundamental principles of American democracy – the right to assemble and protest against the government. For Republicans, that right seems to be reserved for only those who share their political views.
Michael A. Cohen (@speechboy71), a former Boston Globe columnist, writes the newsletter Truth and Consequences. He is co-author of “Clear and Present Safety: The World Has Never Been Better and Why That Matters to Americans” and author of “American Maelstrom: The 1968 Election and the Politics of Division.”