In a piece published by The Intercept on January 19, Spencer Woodman claimed, “Over the past few weeks, Republican legislators across the country have quietly introduced a number of proposals to criminalize and discourage peaceful protest.”[1]
Is Woodman correct? Did Republicans introduce a number of proposals to criminalize and discourage peaceful protest?
Woodman is incorrect. At the time of his claim, Republican lawmakers in three states had introduced legislation to increase penalties for protesting in roadways or on highways, where it is already illegal.[2][3][4] In a fourth state, Republican lawmakers introduced a bill that would make it easier for employers and individuals to obtain injunctive relief for already illegal forms of picketing, while designating new fines for those who violate the court order.[5]
A fifth bill would waive liability if a motorist negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway.[6]
The four bills relating directly to protest do not criminalize those protests, as the proposed changes relate to acts that are already prohibited by law. (An Iowa measure introduced after the time of Woodman’s writing would create a new crime related to an already illegal type of protest, as explained below.) Whether any of the bills, if enacted, would discourage protest is speculative, although sponsors have expressed hope that steeper penalties would keep protesters from blocking roadways.[7][8][9][10][11] Finally, nonviolent protests do not necessarily constitute peaceful protest if they involve a “breach of the peace,” according to the U.S. Supreme Court's ruling in Cantwell v. Connecticut.[12]
Iowa bill
Woodman claimed that an Iowa Republican legislator had pledged to “crack down on highway protests,” citing a Des Moines Register report that Rep. Bobby Kaufmann (R-Wilton) planned to introduce a bill in January to “make it easier for law enforcement authorities to charge protesters criminally.”[1][13]
On January 19, Iowa Republican State Sen. Jake Chapman introduced a bill that would reclassify obstructing highway traffic from a public nuisance to a class D felony, under which the maximum fine would be raised to $7,500 (from the current $6,250) and the maximum prison sentence would be increased to five years (from the current two).[2]
Some three weeks after publication of Woodman’s piece, Rep. Kaufmann introduced legislation that would set the fine for obstructing a highway at $1,000 (from a possible $6,250) and establish as an aggravated misdemeanor the “organizing, scheduling, or otherwise assembling a group of persons if the person knows or should reasonably know the group of persons will loiter” on a highway. This would be a new crime, punishable by up to two years in prison and/or a $6,250 fine (the existing maximum penalties for obstructing a highway in the state).[14][15]
Minnesota bill
Woodman claimed that a Minnesota bill “seeks to dramatically stiffen fines for freeway protests and would allow prosecutors to seek a full year of jail time for protesters blocking a highway.”[1]
On January 5, Rep. Kathy Lohmer (R-Stillwater) introduced legislation to increase the charge for obstructing traffic on highways from a misdemeanor to a gross misdemeanor.[16][4] That would allow for a maximum fine of $3,000 (up from $1,000), and a maximum jail sentence of one year (up from 90 days).[17]
North Dakota bill
Woodman claimed that North Dakota Republicans introduced a bill that would “allow motorists to run over and kill any protester obstructing a highway as long as a driver does so accidentally.”[1]
A bill relating to driver liability was introduced on January 9 by Rep. Keith Kempenich (R-Bowman).[18] It stated, “Notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.”[6]
Contrary to Woodman’s claim, an exemption from liability for accidental injury or death is not a grant of permission to cause injury or death. The bill was rejected by the state Houseon February 13 by a vote of 50 to 41.[18]
Washington bill
According to Woodman, Washington state Republicans proposed a plan to “reclassify as a felony civil disobedience protests that are deemed ‘economic terrorism.’”[1]
Woodman was apparently referring to a bill that state Sen. Doug Ericksen (R-Whatcom County) discussed proposing in November 2016 that would have created a crime of “economic terrorism” as a class C felony.[19] However, the bill subsequently introduced by Ericksen and co-sponsor Tim Sheldon (D-Potlatch), first read and referred to the Law and Justice Committee on January 9, would add penalties to the crime of intentionally obstructing traffic if the purpose was deemed to be “economic disruption.” (Intentional obstruction of traffic is already prohibited under the Revised Code of Washington.)[20][3][21]
The bill’s definition of “economic disruption” includes activities that “obstruct, hinder, or delay the passage of any train, truck, car, ship, boat, aircraft, or other vehicle or vessel engaged in the carriage, hauling, transport, shipment, or delivery of goods, cargo, freight, or other item, in commerce.”[3]
Michigan bill
Woodman claimed that Michigan Republicans introduced an “anti-picketing law that would increase penalties against protestors [sic] and would make it easier for businesses to sue individual protestors [sic] for their actions.”[1]
Rep. Gary Glenn (R-Midland) introduced legislation in November 2016 that, if enacted, would have made it easier for individuals or business owners who were being picketed to seek a court order for the pickets to cease. If the form of picketing was outlawed, such injunctive relief under the bill could have been granted “without regard to the existence of other remedies, demonstration of irreparable harm, or other factors.”[5]
The bill would have also designated failure to comply with an injunctive relief order as contempt of court. Individuals who violated the injunction would have been subject to a $1,000 daily fine, and unions or organizations continuing to sponsor a protest in violation of the injunction would have been subject to a $10,000 daily fine for as long as the picketing continued.[5]
The legislation passed the state House in December but failed to receive a Senate vote before the conclusion of the legislative session.[22]
Conclusion
Writing for The Intercept, Spencer Woodman claimed that “[o]ver the past few weeks, Republican legislators across the country have quietly introduced a number of proposals to criminalize and discourage peaceful protest.”[1]
When contacted by Verbatim for further information about his claim, Woodman said, “When you take standard obstruction laws and create new classes of criminal penalty specifically aiming at protest—that would be called criminalizing the act of protest.”[23]
However, the bills introduced at the time of Woodman’s writing, if enacted, would not criminalize any form of protest because the proposed changes relate to acts that are already prohibited by law. Only the Iowa measure that was introduced after Woodman’s piece would create a new crime related to an already illegal type of protest.
Sources
7. The Des Moines Register reported that Iowa State Sen. Jake Chapman said regarding his proposal, “There is an appropriate time and an appropriate place to [protest]. Interstates are not one of those places. That is what this bill does. It aims to stop that.” See The Des Moines Register, “Iowa bill: Five years in prison for highway protesters,” January 23, 2017
8. Q13 FOX reported that Washington State Sen. Doug Ericksen said his bill was “prompted by recent illegal actions that have blocked rail and highway transportation,” adding, “We know that groups are planning to disrupt our economy by conflating the right to protest with illegal actives that harm the rights of others.” See Q13 FOX, “Bill would increase penalties for those blocking roads, railways as part of protests,” February 2, 2017
9. Minneapolis/St. Paul radio station WCCO reported that Minnesota Rep. Kathy Lohmer referred to recent freeway protests as a threat to public safety when discussing her proposal, reportedly saying “Freeways are not really public spaces, like parks and places like that. You need a license to drive on the freeway. You can’t walk on the freeway.” See WCCO, “New Bill Would Make Freeway Protesting Serious Crime,” January 12, 2017
10. The Detroit News reported that state Rep. Gary Glenn referred to two protests from 2016 when discussing his proposal and quoted him as saying that “the current penalties are not sufficient to deter already-illegal activity.” See The Detroit News, “GOP House approves big fines for ‘mass picketing,’” December 7, 2016
11. Minnesota’s Star Tribune and the Associated Press reported that North Dakota Rep. Keith Kempenich said regarding his driver liability bill, “This bill puts the onus on somebody who's made a conscious decision to put themselves in harm's way. You can protest all you want, but you can't protest up on a roadway. It's dangerous for everybody.” See Star Tribune, “North Dakota bill aimed at Standing Rock protest,” January 16, 2017
12. The 1940 Supreme Court case Cantwell v. Connecticutestablished that “[t]he offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility ... When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.” See Supreme Court of the United States, Cantwell v. Connecticut, May 20, 1940
