The right to peacefully protest needs better supporters

First Five by the Freedom Forum Institute

Sep 3, 2020

LATA NOTT

On Friday, Aug. 28, Rep. Jim Banks of Indiana introduced a bill called the “Support Peaceful Protest Act.” Despite the cheery title, its very purpose appears to be to make individuals think twice before attending any sort of protest. If the bill were to pass, it would make it so that an individual “convicted of a federal offense related to their conduct at and during the course of a protest” policed by federal law enforcement officers would be required to pay the cost of that policing, and would be deemed ineligible for COVID-19 unemployment benefits. This would be on top of the penalty imposed on the protester for committing that federal offense in the first place.

Rep. Banks’s rationale for this piece of legislation? “Antifa thugs are descending on suffering communities, disrupting peaceful protests and leaving violence, looting and vandalism in their wake ... Due to enhanced federal benefits, taxpayers are giving wages to jobless rioters that are destroying our communities. We need to cut them off from their funding and make them feel the full financial consequences of their actions.”

The handful of comments on the congressman’s website were mostly positive, with the general sentiment being, “What’s wrong with a law that holds people accountable for the damage they cause?”

Well ... a few things.

To start with, some of the commenters might be surprised to learn about what, exactly, constitutes a federal offense. As documented by the Prosecution Project, in many cases the charges that federal prosecutors are pursuing against protesters don’t involve violence or even property damage. For example, a Texas man was charged with “civil disorder” for trying to barge through a police line and then passively resisting arrest by placing his arms underneath his body as he lay on the ground. Six individuals were charged with inciting riots, not because of actions they took at protests, but because of posts they made on social media. (As the blog Lawfare reports, the federal statute that they are charged with violating has long been criticized for infringing on First Amendment rights “because it broadly prohibits a class of speech without tying that speech to any imminent action.”)

But even when it comes to federal offenses that are truly violent and destructive, I have an instinctive skepticism about laws that do nothing but take acts that are already illegal and make them even more illegal. If you are convicted of, say, destroying government property because you vandalized a police car, you will already be facing jail time and/or heavy fines. So why should vandalizing a police car at a protest incur an extra layer of punishment over doing the exact same thing on a regular day? If anything, it’s a lot more difficult to ascertain who did what at a protest than it is at almost any other time — it’s very easy for peaceful protesters to be swept up in charges for violent acts they had nothing to do with. Interestingly, when a commenter in a Facebook discussion about the “Support Peaceful Protest Act” pointed this out (“I see this going horrendously wrong and people being punished for something they didn’t do”), many of the responses implied that that’s simply the price one must pay for going to a protest in the first place (“if your [sic] there peacefully protesting and don't do anything to stop the ones who are rioting then yes you are just as guilty”). In other words: if you want to exercise your First Amendment freedom to peacefully protest, you need to accept that you’re risking your federal employment aid should violence break out nearby.

Laws like the ones proposed by Congressman Banks create what we call a “chilling effect” on First Amendment rights. They don’t outright ban assembly, but create repercussions that intimidate and dissuade people from doing it. This law in particular seems aimed at keeping people who have suffered economic misfortune from politically participating.

The right to peacefully protest needs better supporters.