by Casey J. Bastian
When a white Minneapolis police officer killed George Floyd, videos of the callous act went viral. The event prompted a seemingly unprecedented wave of racial justice and anti-police protests that have continued since that day May 2020. Millions of protestors took to the streets. A great majority of the protests were peaceable assemblies—the type of demonstrations expressly protected by the First Amendment. In a typical response, opportunist politicians focused on the minority of worst-case examples to push their agendas rather than fix the root causes that prompted the protests in the first place. Multiple states have drafted legislation creating harsher penalties for protestors labeled as “rioters.” The question becomes: Who gets to decide what conduct transforms a protestor exercising their First Amendment rights into a “rioter”?
Enrique Armijo is a professor and associate dean at Elon University School of Law, located in Greensboro, North Carolina. He believes the concern with such legislation is that overbroad legal definitions in these new bills could have a chilling effect on lawful protesting. “If I want to protest something and I don’t know whether or not I’m going to get arrested for protesting, I’m just going to sit at home. That’s me not engaging in a constitutionally protested activity,” observed Armijo. Experts predict the constitutionality of these new laws will be tested in multiple lawsuits arguing a wide-range of legal theories.
Indiana, South Dakota, Nebraska, Missouri, Oklahoma, Ohio, Virginia, and Florida are the eight states passing these excessively restrictive laws.
Florida’s H.B. 1, a 52-page law announced by Governor Ron DeSantis, went so far as to create an “affirmative defense for those who harm or kill protestors accused of ‘acting in furtherance of a riot.’” DeSantis called H.B. 1 “the strongest anti-looting, anti-rioting, pro-law enforcement piece of legislation in the country.” H.B. 1 was immediately challenged in two federal lawsuits seeking to have it overturned.
Francesca Menes responded, saying, “This is an attack on us. This is a very clear, blatant attack on Black people exercising a right that they have historically exercised throughout the civil rights movement.” Menes is co-founder of Black Collective, which promotes political and economic empowerment for Black communities in Florida.
Rachel Kleinman is senior counsel for the NAACP Legal Defense Fund. Kleinman is also co-counsel for the Dream Defenders, another Florida group involved with bringing the initial challenges to H.B. 1. Dream Defenders, Black Collective, and the NAACP worked together to knock on the doors of about 10,000 Florida residents to explain the dangers of H.B. 1. Of the challenges Kleinman said, “I definitely think this case is being closely watched, maybe by both sides, to see what kind of challenges are going to be successful, and how far people can push.”
The Dream Defenders suit argues that H.B. 1 violates the First Amendment, as well as the Fourteenth Amendment because the law appears to specifically target “Black-led protests.” The law is also so broad that the groups are arguing it violates due process because it isn’t clear what exactly is being penalized.
Vanderbilt University law professor Gautam Hans believes some arguments will be more persuasive than others. Hans is hopeful though, adding, “The First Amendment striking down regulation is having a moment these days.” Hans is referring to U.S. Supreme Court opinions taking a more expansive view on the First Amendment over the past decade and a half.
Dozens of lawyer groups and civil rights advocates hope that remains true. Lawyers Matter Task Force representative Aaron Carter Bates is grateful for the legal assistance but cautions fellow advocates to remember that they are “not reinventing the wheel.” Bates summarized his concerns by stating, “The heavy lifting has been done in many of these arguments. Just be careful you’re not wading into a situation where you’re creating bad law.”
Kleinman believes the most impactful litigation will be for those most affected by the new laws, those “groups advocating for racial justice, people who are calling for a reimagination of public safety.” Kleinman believes it is important to focus on the stories behind the protestors. “Bring out their story, and I think the lawsuits are likely to be more effective,” said Kleinman.
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