The United States has witnessed a notable increase in public protests over the past decade. Events such as the Black Lives Matter protests, the Women’s March in 2017, and climate strikes have seen millions take to the streets. Even during the COVID-19 pandemic, protests against pandemic regulations occurred (PEN America, 2020). However, with this democratic action, a number of legislative proposals have been presented by state lawmakers that undermine protest rights and tend to penalize protesters. According to the PEN America ‘Arresting Dissent’ analysis, 116 state‑level bills were proposed between 2015 and 2019 to limit protest rights, with 23 enacted into law, and before 2017, there were almost no such proposals (PEN America, 2020).
The need to protect “critical infrastructure” is cited as the reason behind trespass laws that lawmakers argue are required in the interest of public safety. However, PEN America highlights that these laws are instead a reaction to pipeline protests and environmental resistance (PEN America, 2020). These laws establish loose categorizations. Telephone poles and train tracks are defined as “infrastructure” and impose severe sentences that previously carried little more than a slap on the wrist (PEN America, 2020). They are no longer impartial instead, they are intended to deter those who protest against industries. The legislative reaction to these matters has lagged behind the constitutional principles discussed in Karen Pita Loor’s paper, “The Expressive Fourth Amendment.” The paper highlights that the reasonableness requirement within the Fourth Amendment must include the positive evaluation of protesters’ expressive activity and that courts must assess protest policing with the kind of perspective that keeps free expression paramount. The Supreme Court has already conferred a “tier-one” protection on papers, videos, and other expressive items within the Fourth Amendment because such items are conduits for speech (Loor, 2021).
The law inevitably interacts with free speech. A degree of regulation is clearly required. There can be reasonable time, place, and manner restrictions to ensure that free speech does not interfere with the safety and well-being of others. However, as “Arresting Dissent” demonstrates, current state legislation has moved well beyond such evenhanded and narrowly tailored regulation, expanding criminal sanctions for protest actions and authorizing group punishment if groups “conspire” to protest (PEN America, 2020). Instead, through policy, we should fight to uphold the safeguards already guaranteed by the Constitution.
The trend of state legislation to restrict freedom of expression poses a serious threat to democracy. In “Arresting Dissent”, there is validity to the argument that the trend towards anti-protest legislation is part of an effort to dampen the voices that are critical during this period of national transformation in which protest shifts the national narrative (PEN America, 2020). Karen Pita Loor’s Expressive Fourth Amendment challenges us to understand that freedom of expression is built into the Fourth Amendment (Loor, 2021). Policies should manage protest logistics, but they must never be defined in a way that criminalizes the act of protest.
Loor, K. P. (2021). The Expressive Fourth Amendment. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3806815
PEN America. (2024, July). Arresting Dissent. PEN America. https://pen.org/report/arresting-dissent/