Dangerous new laws criminalize the right to protest

America was literally created as an act of protest. And the history of America is a tribute to the power of protest seeking to advance the cause of justice and equality. "One of the great glories of democracy," Dr. Martin Luther King Jr. wrote, "is the right to protest for right," enshrined in the First Amendment.

While that history is full of successes and failures, massive protests have been part of all our great advancements: ending slavery, ensuring women the right to vote, protecting the rights of working people to organize, dismantling white supremacy, protecting the right to dissent during war and periods of political repression, reducing the risk of nuclear annihilation, preserving the environment, protecting the rights of persons with disabilities, guaranteeing marriage equality, protecting reproductive justice, and struggling to safeguard the dignity of every individual.

But the right to protest is under serious and widespread assault. Since January 2017, 45 states have considered 267 bills that restrict the right to protest, according to the International Center for Not-For-Profit Law. Recently at least 40 new laws have been enacted that restrict the right to protest, including laws that limit where people can protest, laws that provide immunity for motorists who harm protesters, laws that enact penalties for protests near oil and gas pipelines and other critical infrastructure, laws seeking to have organizers who plan demonstrations held financially responsible for the costs of protests, and laws that provide overly broad definitions of a riot and other key terms.

One of the most sweeping and draconian of these anti-protest laws was signed in April 2021 by Florida Governor Ron DeSantis (R). It expands the legal definition of "riot" - a 3rd degree felony - to include any group of three or more individuals whose shared intent to engage in disorderly and violent conduct results in "imminent danger" of property damage or personal injury, or actual damage or injury. The new law does not even require that one charged with a felony actually engage in disorderly or violent conduct, or cause any actual damage or injury.

This new law also states that a "riot" consisting of 25 or more people, or one that "endangers the safe movement of a vehicle," is automatically an "aggravated riot," a new 2nd degree felony offense. As such, large groups of protesters or ones that block traffic, even temporarily, could face up to 15 years in prison. Under the new law, "inciting" someone to participate in a "riot," without doing anything else, is a 3rd degree felony, punishable by 5 years in prison.

The Florida law also encourages violence against protesters. Anyone sued by a protester for causing personal injury, death, or property damage could avoid liability by establishing that the violent conduct "arose from" the activities of someone "acting in furtherance of a riot."

Fortunately, in September 2021, U.S. District Court Judge Mark F. Walker enjoined the provisions of the new law that rely on the new definition of "riot." The court noted that the Florida Legislature enacted the law "following a summer of nationwide protest for racial justice, against police violence and the murder of George Floyd and many other people of color, and in support of the powerful statement that Black lives matter." The Dream Defenders, et al v. DeSantis, Case No.: 4:21cv191-MW/MAF (USDC Northern District of Florida, Tallahassee Division). On Jan. 10, 2023, the Eleventh Circuit Court of Appeals maintained the preliminary injunction in effect and certified several questions of statutory construction to the Florida Supreme Court. The Dream Defenders v. DeSantis, 21-13489.

Based on an exhaustive 90-page analysis, the court found that the plaintiffs had established a substantial likelihood of proving that the statute was unconstitutionally vague and overbroad. The judge explained that although Governor DeSantis and the other defendant "argue that the phrase 'willfully participate' is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?"

The court also found that the term "violent public disturbance" raises similar questions: "Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition? ...Governor DeSantis offers no answers to these questions - instead, he insists the statute is clear in that 'it merely prohibits participating in, or assisting others in participating in, violent protests.' The Governor's strained construction eliminates the phrase 'a violent public disturbance involving'... But as Governor DeSantis acknowledges, this Court must read the statute as a whole and give meaning to each word or phrase that the Legislature used."

The court found that "Defendants' proposed interpretation strains the rules of construction, grammar, and logic beyond their breaking points, and requires this Court to ignore the plain text of the statute and blithely proclaim that 'everyone knows what a riot means,' notwithstanding this new definition that the Florida Legislature enacted. ... Indeed, Defendants would have this Court pencil in the margins that only active, violent acts in furtherance of either the 'violent public disturbance' or the 'violent and disorderly conduct' - again, it is not clear which - constitute participation."

To recap, the court held that the "new definition of 'riot' both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality."

In addition, the court found the law unconstitutionally overbroad. "If this Court does not enjoin the statute's enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians. This violates the First Amendment. ... Florida's interest in preventing public violence is beyond question, but when that interest collides with rights guaranteed by the First Amendment, the 'government may regulate in the area only with narrow specificity.' ... Otherwise, those rights, which 'are delicate and vulnerable, as well as supremely precious in our society,' may be suffocated."

In 1939, in Hague v. CIO, the Supreme Court held that "wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."

In the last decade alone, Americans have joined in massive protests expressing outrage over racial injustice, police violence, and women's rights. With repressive anti-protest laws proliferating, will the American people, elected officials, and the courts reject attempts to suffocate what Dr. King called "one of the great glories of democracy"?

Stephen Rohde, author of American Words of Freedom and Freedom of Assembly, is past President of the Beverly Hills Bar Association, which on May 25, 2023, at 12:30 PST, is presenting a free webinar entitled "Lock 'Em Up! How State Legislatures Are Criminalizing Protests." For more information and to register, go to www.bhba.org/protest-webinar