[music]

Nancy Solomon: It's The Takeaway, I'm Nancy Solomon from WNYC News in for Tanzina Vega.

[protesters chanting "He can't breathe"]

Nancy Solomon: Last year, all around the country people took to the streets in an unprecedented uprising for racial justice. After the police killing of George Floyd, the Black Lives Matter Movement reignited in all 50 States.

[noise from protesters]

Nancy Solomon: We also saw brutal crackdowns by the police on protesters. In just the first few days of demonstrations, police around the US arrested more than 10,000 protesters, many for violating curfews and failing to disperse.

Man 1: "We have a group of people blocking traffic on Albany and Dean street. They're refusing to let-- go eastbound, so we're stuck here."

Man 2: "Run them over." "Shoot those--" [sound cut]

Man 3: "Don't put that over the air."

Nancy Solomon: This year, the police killings have continued and so have the protests.

[protesters chanting]

Nancy Solomon: That's a Columbus, Ohio protest against the police shooting of 16-year-old McCaya Bryant last week. As demonstrations continue in the US, some lawmakers around the country are looking at stricter legal penalties for protesting. Oklahoma and Iowa recently passed laws that grant immunity to people who strike protesters with their cars, and in Florida last week, Governor Ron DeSantis signed legislation to create harsher penalties for existing public disorder laws.

Governor Ron DeSantis: We're not having riots in the state of Florida, and so we put our foot down, we protected our folks. If a local government tries to defund the police, we at the state can stop that. We're able to put people in jail if they riot or assault a police officer. In fact, you assault a police officer during a riot, you have a mandatory jail sentence of at least six months. I think it's probably the most comprehensive piece of law and order legislation I've seen.

[protesters chanting "He can't breathe"]

Nancy Solomon: We're going to talk about this wave of anti-protest legislation with Civil Rights Attorney Nora Benavidez, the Director of US Free Expression Programs at PEN America. Nora, great to have you.

Nora Benavidez: Hey, Nancy. Thanks for having me.

Nancy Solomon: I'm also joined by Elly Page, Senior Legal Advisor at the International Center for Not-for-Profit Law, and its US Protest Law Tracker. Elly, great to have you here as well.

Elly Page: Hi, Nancy. Great to be here.

Nancy Solomon: Let's start with you, Elly. I want to run through some of these recent laws one at a time, so let's start with the law in Oklahoma. What does that one do?

Elly Page: The law in Oklahoma is one of many that we've seen particularly in the last eight months since last summer and the murder of George Floyd that would, essentially, enable violence against protesters by limiting the consequences for drivers who injure or kill protesters with their car, allowing them to avoid both criminal and civil consequences in some cases.

We've seen at least 15 bills since last summer's protests that use that tactic. Essentially means that someone who recklessly drives over a protester can avoid any charges as long as they were acting unintentionally.

Nancy Solomon: Wow. That's just mind-boggling to me. Nora, tell us about the Florida law.

Nora Benavidez: Sure. Florida has really inspired many, in my count, 21 other proposals around the country. Governor Ron DeSantis introduced this very influential anti-protest policy in December, and when he did that, he announced that really this was aimed at professional agitators. Included in his proposal, he tried to put forward 11 different measures that would somehow punish protest-related activity.

At the time, that included making blocking traffic punishable by up to five years in prison, making destroying or toppling monuments during a protest punishable by up to 15 years in prison. It would provide immunity for drivers who hit demonstrators, which is a recurring provision that we are seeing, and then it would also open local governments to lawsuits if they were negligent in protecting people and property, essentially creating the incentive to make sure that there is enough police presence during protests.

Nancy Solomon: Isn't there also a local provision about any town that would reduce police funding? Is that part of this as well?

Nora Benavidez: Yes, that's right. It's really a one-two punch, finding as many ways to incentivize "enough police presence" so that those that are protesting might otherwise think twice about actually protesting for fear of some very large police presence and a force that is not able to reduce its funding. I think that's really a clear response to the BLM and the Defund the Police Movement.

Nancy Solomon: Elly, what's considered a riot under the Florida law, and who has the discretion to decide this?

Elly Page: It's a great question. The law creates a sweeping new definition of riot that can capture folks who are protesting completely peacefully if a group that they're part of is deemed, essentially, to pose a threat to property or people. If you have a large group that police decide poses a threat of property damage, anyone in that group can face second-degree felony charges, which means 15 years in prison, potentially.

Likewise, if that group is blocking traffic during what is deemed a "riot", that's another second-degree felony. It's a problem that we've seen, it's an issue that we've seen across the country in initiatives that would expand the legal definition of riot in ways that can capture purely peaceful, legitimate protest activity.

Nancy Solomon: To your knowledge, Nora, are there any laws related to the January 6th Capitol uprising, or is it mostly related to Black Lives Matter protests?

Nora Benavidez: That's such a great question because our state legislative sessions began in January, and so we saw dozens and dozens of new anti-protest policies introduced in the wake of January 6th. I think that it would really be a false equivalency to say that the Capitol insurrection, and the Black Lives Matter and the George Floyd protests are one and the same.

From my research, really we only have seen one bill and that is out of Connecticut that would explicitly take on criminalizing certain activities like taking papers from a state legislature or from chambers.

Really, that means that the playbook has been the same as it's been since 2017 for state legislators to introduce policies that really roll back our rights, whether it's creating greater penalties as Elly says, or creating new types of penalties, not just steeper ones. These are the types of policies that aren't necessarily in response to January 6th, but in response to progressive racial justice movements.

Nancy Solomon: Is anyone raising the fact that many of these same states allow protesters to carry guns? Isn't that a bit hypocritical?

Nora Benavidez: That's one of the main progressive talking points now, many people have tried to shine a light on that. If you think back to our anti-lockdown protesters in Michigan who stormed their state capitol armed with guns, our former president, Donald Trump, said they were very fine people. All the while turning and looking at George Floyd protesters, Black Lives Matter protesters, calling them thugs.

I think there's this very clear animus that is viewpoint specific, that if you have a certain message, you will more likely be seen as somehow criminal. We're trying to undo that misconception.

Nancy Solomon: Let's talk about the proposed bill in Minnesota, this is, of course, where George Floyd was killed and where many, many protests were held after that. Nora, tell us about the bill that's proposed in Minnesota.

Nora Benavidez: There are so many bills in Minnesota and it's really been a hotspot state for many anti-protest policies from the critical infrastructure types of proposals that would make someone near a critical infrastructure site also criminal, highway obstruction bills. Specifically, though, new pending legislation would increase costs for protesters, and it would make obstructing a highway or interfering with traffic vehicles new and enhanced penalties.

Nancy Solomon: The Republicans who are proposing, and, in many cases, passing these laws, what are they saying to justify this?

Nora Benavidez: As we've seen Governor DeSantis mention, many of these bills are supposed to enhance public safety, to really create a space where speech can thrive. Governor DeSantis said, specifically, that we needed to protect against these agitators bent on sowing disorder and causing mayhem in our cities.

Other legislators have been quick to also say that we need to protect our citizens, we need to rally together to make sure that these riots aren't happening. When we look at the numbers, when we look at what happened this past summer, our friends like ACLED, the Armed Conflict Centers, have explicitly said that 93% of the protests last summer were actually peaceful. We're really legislating and trying to correct a problem that doesn't exist.

Nancy Solomon: Elly, what is the specific groups and the specific political ideologies that are being targeted here? What evidence do we have that this is really about Black Lives Matter and not other kinds of protests?

Elly Page: Thank you, Nancy. I think we've repeatedly seen lawmakers seek to silence specific protest movements instead of engaging with the concerns that have motivated people to turn out. With this wave of bills, it's no exception. Lawmakers have made very clear that they're responding to last summer's protests against systemic racism.

We know this from the statements by lawmakers themselves, which often conflate last summer's, as Nora points out, overwhelmingly peaceful protests with looting and violence, and then the text of the bills. The fact that they're targeting street protests, they're raising penalties for blocking traffic, they're making it easier for people to hit protesters with their cars, and targeting large and "disorderly protests".

Nancy Solomon: I still can't get over the hitting people with their cars. Is there been pushback--? I would expect Republican voters to be a little wary of that one. Are we seeing any pushback coming from other than the progressive camp on that?

Elly Page: You would hope to see pushback from all sides of the political spectrum because these are proposals that would threaten a right that's enjoyed by all Americans. This is not purely a right and a freedom that's enjoyed by protesters on the left. Whether it's reopening or reopen protesters or anti-abortion protesters, they're exercising the same right under threat now.

Nancy Solomon: It seems like a majority of these laws are trying to protect private property from vandalism. Is that an accurate assessment of what's going on?

Nora Benavidez: I think these proposals are trying to do a lot, actually. Whether it's protecting private property, or making penalties so steep for someone that would be obstructing traffic, or even strip people of their public benefits and access to state benefits, they feel they can't really protest. Many of these contain so many disparate and far-reaching provisions. It isn't just about protecting property, it's about fundamentally making people feel like the risk of protesting is so great that they likely shouldn't do it.

Nancy Solomon: Now, of course, there were laws on the books already for protecting property and arson, violence. Are there any places where there needs to be improvement, where things happen during protests where we need tighter laws?

Nora Benavidez: That's one of my favorite questions, and no. All of these states have existing misdemeanor laws on the books, which means if you do obstruct traffic, that is already a low-level misdemeanor in all of these states.

The proposals that we're talking about today are really just juicing up the penalties for people for things that already exist as criminal penalties, and often will just be further reason for people to think twice. It's such a good question, and I think it really begs the bigger question of why legislators are doing this.

Nancy Solomon: Elly, are people around the country challenging these laws? What's going on to fight back against them?

Elly Page: Yes. We know that where these laws have passed-- Already in Florida, where DeSantis signed their new law last week, already folks have brought constitutional challenges against the law. We know that advocates are gearing up in other states where these laws are threatening to pass to do the same, but it's risky. Litigation is not a sure thing, and I think the number one priority and challenge right now is ensuring that these bills don't pass in the first place.

We have an overwhelming wave of legislation. We've seen over 90 bills introduced in 35 states since last summer. It's an unprecedented wave both in terms of the number of bills introduced, the extent to which they're moving through legislatures and passing, and the extreme lengths they go to restrict and chill protest rights.

Nancy Solomon: Do you have a number of how many states, I mean 90 bills spread across how many states?

Elly Page: 35 states.

Nancy Solomon: Wow, that's a lot. Nora, what are the First Amendment implications of these types of laws?

Nora Benavidez: Everyone often feels like protest is an activity for people who feel otherwise that their voices aren't heard. I think it's important for us to take a step back and remember why we protest. We often come together, we express ourselves when we feel like our cause is one that is not getting attention or recognition.

It's important to see that our First Amendment rights, and specifically the freedom of assembly, is one that we really should be upholding, protecting, and viewing as sacred in this country, because it's so fundamental to the way that we conceive of how we engage with democracy. Yet, mostly, these proposals would, in some way, make it harder to come out and demonstrate.

Not all of these proposals, however, are, I would say, slam dunk unconstitutional proposals. They often are proposals where I'm worried about the way they will be applied. We do not know yet, given that only about 20% of the anti-protest bills proposed since 2017 have actually become law, we're still in a holding pattern. We're waiting to see how some of these bills will be applied by law enforcement.

Florida was so quick to pass this. The governor was so explicit in his saying that we are targeting the Black Lives Matter protests and George Floyd protests that I think it's really an easy conclusion to see how these proposals, even if they are, maybe, able to pass constitutional muster, they will actually be applied in incredibly uneven ways, targeting specific speech and specific movements.

Nancy Solomon: When you say "waiting", I assume that means that there is no challenge that's yet working its way through the courts?

Nora Benavidez: There are active lawsuits now in Florida challenging the Florida law on its face, to say that the way that this does a number of things violates our First Amendment rights. I am very hopeful that that suit goes well because I think it's a really powerful one. Across the board, because there are so few of these bills that have become law, we're still just very worried about how they'll be applied and their differences.

You can try to challenge a law on its face the moment it becomes law, and then you can try to challenge something once it's been used. That's where I get concerned, of course, about how law enforcement will pick and choose the kinds of speech that will be acceptable to them.

Nancy Solomon: That was my next question, but I think you might have just answered it. That's why this could be disproportional because it's going to be up to police to decide when and where they use these new laws. Is that why it becomes very disproportional?

Nora Benavidez: Absolutely. So many vague provisions. That someone could be, for example, guilty of unlawful assembly. Assembly is baked into our First Amendment, so unlawful assembly is really an oxymoron. To imagine a situation where an officer says, "That's unlawful but this over here is not", those vague terms give police incredible discretion.

Nancy Solomon: Okay. I'm afraid we have to end it there. Nora Benavidez is a Civil Rights Attorney and Director of US Free Expression Programs at PEN America, and Elly Page is Senior Legal Advisor at the International Center for Not-for-Profit Law, and its US Protest Law Tracker. Nora, Elly, great to have you both.

Nora Benavidez: Thanks so much, Nancy.

Elly Page: Thank you, Nancy.

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