In a new policy paper, Arresting Dissent: Legislative Restrictions on the Right to Protest, PEN America finds that the resurgence in recent years of public protest in the U.S. has been accompanied by a new wave of attacks on protest rights in the form of state-level legislative proposals to limit First Amendment rights.

From the growth of the Black Lives Matter movement and its large-scale demonstrations, to the Women’s March protests that began in 2017 in response to the election of President Trump, to mobilization against infrastructure projects and in defense of lands and resources sacred to Native Americans, protest has been on the rise in the U.S. in recent years. Yet as more and more people take to the streets to exercise their First Amendment rights, PEN America has documented that state legislatures are quick to introduce proposals that would create new penalties or harsher sentences for protesters.

In many cases, these bills appear to be ideologically-inflected responses to particular protests, or designed to constrain specific protest movements. These include “critical infrastructure” bills introduced in states that have seen significant pipeline protests, and anti-highway obstruction bills following on the heels of protests that have used road obstruction as a tactic. All of this is occurring against a political backdrop in which President Trump has, until the recent spate of anti-lockdown protests, demonstrated an openly hostile attitude toward the right to protest.

“The right to protest is enshrined in the First Amendment, and a bedrock element of the free speech rights we enjoy as Americans,” said Nora Benavidez, PEN America’s director of U.S. free expression programs. “Yet as individuals have exercised these rights more visibly and volubly in recent years, there has been a determined movement, occurring largely outside the public eye, to delegitimize public protest and paint demonstrators as dangerous or even criminal. In some instances these measures have been tailored in ways that reveal a determination to suppress the robust expression of particular viewpoints, for example by banning protests near public infrastructure projects that have been flashpoints for environmental concerns. At the same time, the president expresses hostility towards certain protest movements, and vociferous support for others, depending on whether or not they align with his views. This selective approach to respect for First Amendment rights flies in the face of the constitution and poses a danger to the expressive rights of all.”

In Arresting Dissent, PEN America finds that, in 2015 and 2016, state legislators introduced only six proposals that restricted protest rights, but from 2017 to 2019, 110 such bills were introduced. Out of a total of 116 bills proposed from the beginning of 2015 to the end of 2019, 23 have become law across 15 states, according to the paper. Nearly a third of all states have implemented new regulations on protest related activity in the past five years. Even with the pandemic having shuttered many state legislatures early, PEN America notes that as of May 2020, an additional 16 restrictive bills have been introduced in state legislatures; four of those have already become law.

“This explosive number of bills across so many states points to an increasingly hostile attitude among legislators toward protesters,” said James Tager, PEN America’s deputy director of free expression research and policy. “And even in these unprecedented times, while some constraints on our liberties may be necessary to preserve public health, we must ensure that the right to publicly and peacefully express our views is safeguarded.”

PEN America finds that the proposed legislation examined in Arresting Dissent can be divided broadly into four categories of bills that:

  • Create or expand criminal penalties for protest activities;
  • Impose costs on protesters, such as clean-up costs or costs of law enforcement;
  • Criminalize activity that may occur in relation to a protest but that is typically constitutionally protected, such as wearing masks;
  • Immunize public or private actors from liability for causing harm to protesters

Of the 23 bills that have become law, the paper notes only two have been challenged in court.

“That so few of these restrictive new laws have been subjected to judicial scrutiny is deeply disappointing,” said PEN America’s Benavidez. “Not surprisingly, this places a heavy burden on individuals in states where these bills have passed, forcing them to weigh their civic interest in exercising their First Amendment rights against the very real potential of being arrested or facing other reprisals. It is our hope that by bringing attention to this national trend, we can mobilize pressure on lawmakers across the political spectrum to defend the fundamental right to peaceful protest.”

Alongside the paper, PEN America is also publishing a comprehensive index of all protest-related bills introduced on the state level from 2015 to 2019.