Republicans Respond to Black Lives Matter with Anti-Protest Bills

By: - February 4, 2021 12:00 am

Protesters demonstrate in Palm Beach, Florida, on Juneteenth, the holiday commemorating the end of slavery in the United States. Civil rights groups worry new Florida legislation restricting protest actions could suppress First Amendment rights. mpi04/MediaPunch/IPX via The Associated Press

This story has been updated to clarify changes to penalties for drivers under state legislation.

Genee Tinsley helped organize rallies and marches in Palm Beach County, Florida, last summer to protest police brutality, demand racial justice and call for redirecting some police funding to social services.

Now she’s organizing an online forum to teach people about a Florida bill that would increase penalties for unlawful activity during a protest. The bill could give law enforcement broad discretion to declare a gathering a “riot” and charge participants with a felony crime.

The bill also would make it harder for cities to cut police funding and prevent protesters from suing for damages if they’re injured by a counter-protester.

“For me, it’s like they’re silencing protesters,” Tinsley said, “specifically Black and brown people.” Tinsley said the protests her organization, Freedom Fighters for Justice, organized this summer were peaceful.

The Black Lives Matter protests that blossomed in small towns and big cities across the nation last year awakened many Americans to systemic racism and biased policing. Former President Donald Trump and other Republicans responded to the mostly peaceful protests, a few of which involved clashes among protesters, counter-protesters and police, by calling for “law and order.”

Now Republican legislators in Florida and 21 other states are considering tough new penalties for protesters who break laws. As in Florida, some of the bills also would prevent localities from cutting police budgets and give some legal protection to people who injure protesters.

Supporters say the new penalties would help prevent acts of violence—by protesters of all political persuasions—and protect law enforcement officers. Civil rights groups and Democrats, however, say the bills would chill First Amendment rights to free speech and peaceful assembly and could be used by police to disproportionately arrest and charge people of color.


Many of the statehouse proposals target specific acts of protest that were popular among Black Lives Matter participants and that echo activism during the civil rights movement, when protesters marched through streets or sat down at Whites-only lunch counters, taking up physical space in acts of civil disobedience.

Some protest activities, such as blocking traffic or marking buildings with graffiti, exist in a legal gray area, said Tabatha Abu El-Haj, a law professor at Drexel University who studies First Amendment law.

“It’s technically unlawful to block traffic, and at the same time that’s an essential tactic in the right of peaceful assembly, in my view,” she said.

Other protest tactics, such as tearing down monuments, are clearly illegal, she said, and limits on such behavior are likely constitutional.

Since the insurrection of Jan. 6, proponents say they also would hold right-wing extremists accountable for the same actions.

“We have to strengthen our laws when it comes to mob violence, to make sure individuals are unequivocally dissuaded from committing violence when they’re in large groups,” said Florida Rep. Juan Alfonso Fernandez-Barquin, a Republican and sponsor of the House version of the bill, during a subcommittee hearing last week. Fernandez-Barquin’s office did not respond to requests for comment.

Civil rights experts, however, say the penalties could be applied unevenly. “We know from existing data on arrests and convictions, [that] folks in the Black community, in particular, are over-incarcerated and overcharged,” said Carrie Boyd, policy counsel for the Southern Poverty Law Center Action Fund, the lobbying arm of the Southern Poverty Law Center, a Montgomery, Alabama-based group that advocates for racial justice in the South. 

“This bill, in our minds, is deliberately broad to cast a wide net and, frankly, to round up folks,” she said of the Florida bill. 

Police in full riot gear have confronted Black Lives Matter protesters and used tear gas and rubber bullets to disperse crowds, a show of force that hasn’t been equally applied to right-wing protests.

Provisions in the bills that would prevent cities and counties from defunding the police reveal legislators’ real motivation, said Vera Eidelman, a staff attorney at the American Civil Liberties Union’s project on speech, privacy and technology.

“To the extent that the claim is this is about methods, those kinds of provisions make it clear that it’s actually about a message of protest,” she said.

In recent years, lawmakers in at least 15 states have responded to protests against police brutality and oil and gas pipelines by increasing penalties for unlawful protest activity, according to the International Center for Not-For-Profit law, which is headquartered in Washington, D.C., and tracks such bills. 

Tennessee lawmakers last summer increased penalties for a range of offenses such as vandalism and assaulting first responders, and made it a felony to camp out on the grounds of the state Capitol—which Black Lives Matter protesters did for 62 days last year. 

If activists tried another sit-in at the Capitol, they’d risk up to six years in prison and losing their right to vote, as some convicted felons in Tennessee can’t vote, said Justin Jones, a Vanderbilt Divinity School student who helped organize “The People’s Plaza” last summer. 

Jones said the new penalties make people think twice about protesting. “That law had the effect of intimidating a lot of people from coming out,” he said. “It just made a lot of people a little bit more fearful to participate.”

‘Clear and Predictable Penalties’

Supporters of the tougher penalties point not only to protests in their own states but also to unrest in cities such as Portland, Oregon and Seattle, which Trump’s Justice Department labeled “anarchist jurisdictions” last year. Trump blamed antifascist, or “antifa,” agitators for violence at protests, although there’s not much evidence they participated.

Florida Gov. Ron DeSantis, a Republican, said in September while introducing an early version of the Florida bill that although his state’s protests had been mostly peaceful, lawmakers needed to take action to avoid violence seen elsewhere.

“What you have to have is clear and predictable penalties,” he said at a news conference, flanked by uniformed sheriffs and police chiefs. “I look at what goes on in Portland, and they’ll have people, they arrest them—these are all scraggly-looking, antifa types—they arrest them, they get their mugshot taken, and they get released, and it’s like a carousel.”

Republican legislative leaders filed a bill similar to DeSantis’ proposal the same day a pro-Trump mob attacked the U.S. Capitol. DeSantis and legislative leaders said in statements then that they wanted to prevent similar violence in their states.

The 60-page bill would create new second-degree felony “aggravated rioting” and “aggravated inciting or encouraging a riot” offenses. It also would create new misdemeanor crimes of “mob intimidation” and “cyber-intimidation,” defined as publishing people’s personal information online to threaten them.

The bill would increase penalties for crimes such as assault and theft during a riot—defined broadly to mean three or more people behaving in a way likely to harm people or damage property—and up the penalties for vandalizing or destroying monuments and memorials. And it would require people arrested for riot-related offenses to be held in jail until their first court hearing, rather than allowing them to post bail.

The law also would allow residents to appeal cuts to local police budgets to the governor and the cabinet, and it would allow people to avoid civil lawsuits if they harm those involved in a riot.

In Washington state, Republican state Sen. Jeff Holy, a retired police officer, has proposed legislation modeled on DeSantis’ proposal in response to the protests in Seattle and Tacoma.

“Seattle, which has tried so very hard to have a hands-off policy, and try to solve problems, has found out that sometimes the people involved in these are not issue-driven,” Holy said. “They are looking for an excuse for violence.”

Holy’s bill also would increase penalties for violence during a protest, such as a minimum six-month prison sentence for assaulting a police officer. It would cut state criminal justice funding for large cities and counties that don’t maintain at least one police officer per 1,000 residents and would ban localities from withdrawing police from certain areas, as Seattle police withdrew from the Capitol Hill neighborhood last summer.

“What about all the residents that live there, that are basically held hostage?” Holy said of the area, which protesters declared an “autonomous zone.” Democratic Mayor Jenny Durkan eventually ordered protesters to leave the zone after a 16- and 19-year-old were shot there and died.

Holy’s bill has six Republican co-sponsors and one Democratic co-sponsor, but he doubts it’ll get a hearing. Washington’s Democratic-controlled legislature is more focused on passing police accountability legislation, such as a bill requiring officers to intervene to stop peers from using excessive force.

Sakara Remmu, lead strategist and chair emeritus for Black Lives Matter Seattle-King County, sees Holy’s bill as retaliation for those police accountability bills. “Bills like [Holy’s] are an absolute distraction from the core issues, and they’re a retaliation point for all the Black and brown voices that are now weighing in in Olympia,” she said.

Holy’s bill also would prevent protesters who block a highway from suing for damages if they were hit by passersby or a police officer trying to flee by car, a provision Remmu called “reprehensible.”

A protester on a Seattle highway was killed by a driver last year, and Black Lives Matter protests nationwide have faced vehicular attacks. In 2017, a man attending a white supremacist rally in Charlottesville, Virginia, drove into a crowd of counter-protesters and killed one; he was later sentenced to life in prison for federal hate crimes.

“This bill makes it easier for somebody to harm, basically anybody,” Remmu said of Holy’s bill. “It’s clearly targeted at Black lives, and the Black Lives Matter movement.” 

Holy’s bill doesn’t change the criminal penalties drivers could face. Holy said his bill would only protect people trying to escape a dangerous situation. “If in fact they’re fearful for their own safety, then they can attempt to drive away,” he said. “This is not free license to run over people.”

A Tense Hearing

In Florida, Democratic lawmakers argue that the bill isn’t necessary and are vowing to fight it, though their chances of stopping its movement through the Republican-controlled legislature are slim.

“Not to be glib, but this is yet another example of a solution in search of a problem,” said Senate Minority Leader Gary Farmer Jr. “But here, the purported solution has a potentially devastating, chilling effect on the right of free speech and the constitutionally protected right of peaceable assembly.”

Farmer pointed to the proposed “mob intimidation” misdemeanor, which he said could make it a crime for people to have a passionate argument in the street. He also said he worried the bill would encourage hardline police tactics against peaceful protesters, such as firing rubber bullets and tear gas.

The bill’s proponents disagree. “The bill does not discourage peaceful assembly or freedom of speech,” wrote DeSantis spokesperson Meredith Beatrice in an email to Stateline. “Governor DeSantis looks forward to working with House Speaker Sprowls and Senate President Simpson to swiftly pass House Bill 1 during the upcoming legislative session to protect the rule of law in our state.”

Rep. Fernandez-Barquin said during the subcommittee hearing last week that his only goal was to prevent violence. “Do I think that this will be used disproportionately on communities of color? It’s not my intention, and I certainly hope not,” he said.

Once committee members had finished questioning Fernandez-Barquin, almost 70 Floridians—mostly young, many of them people of color—came forward to voice their opposition. Some struggled to catch their breath as they raced to speak within the one-minute time limit. Others spoke angrily and loudly through their face masks until their microphones were cut off.

The bill passed out of committee along party lines, with 11 Republicans voting in favor and six Democrats voting against. 

Black Lives Matter activists in Florida and nationwide say new legislation won’t stop them from organizing. 

The new laws prove that racial justice protests are having an impact, said Jones, the student activist in Tennessee. “The protests are shifting the conversation. They’re shifting priorities. They’re shifting consciousness,” he said. “When you have this type of repression, it shows that you’re being effective.”

Tinsley of Palm Beach County said she refuses to be silenced. If the Florida law passes, protest organizers will just have to be more strategic and more alert to counter-protesters looking to stir up trouble, she said.

“The people are tired, we want change,” she said. “And it’s up to politicians and lawmakers to listen to us.”

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Sophie Quinton

Sophie Quinton writes about fiscal and economic policy for Stateline. Previously, she wrote for National Journal.