ATLANTA — Efforts to restrict protests and riots stalled in several states this year, but the momentum could be revived as states prepare to start new legislative sessions in 2023.

According to International Center for Not-for-Profit Law, which tracks anti-protest legislation in the country, 2021 saw the largest amount of anti-protest bills proposed, more than 90, and efforts continued this year.

“The right to protest is a really important part of our democracy and it’s one of the reasons why we have had, why we’ve seen social change throughout history,” said Lindsey Floyd, a legal fellow at the University of Georgia First Amendment Clinic. “Political movements often gain momentum when they amass large public support. and this occurs when individuals collectively exercise their voices … and makes their message heard to the government.”

The March on Washington in 1963 is one of the largest historic protests in the country’s history, drawing an estimated 250,000 people. It led to landmark civil rights legislation, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

From women’s suffrage movements to labor union protests, many successful protests have paved the way to progress and are models for current day protests and movements focused on issues such as gun laws, abortion, LGBTQ, Black Live Matters and other social movements.

Hannah Esserman, student attorney for the First Amendment Clinic, said it is likely that anti-protest legislation will resurface in 2023. She defined “anti-protest” legislation as bills that either criminalize or heighten penalties for activities that either arise naturally from a protest or that are likely to occur as a foreseeable part of a protest. Such bills also typically aim to charge larger fees for cleanup or security and limit protest on government property.

Attempts to restrict protests saw an upward trend following the election of former President Donald Trump in 2016.

“Following this election, the anti-Islam travel ban and women’s march also occurred. and these are just two of the numerous demonstrations that took place during this time period and resulted in a massive increase of anti protest legislation,” Esserman said.

In 2020 during the onset of the COVID-19 pandemic, protests subsided but picked back up nationwide following the killing George Floyd by a Minneapolis police officer in May 2020.

Georgia legislators introduced the Safe Communities Act of 2021 (SB 171) in February 2021 which sought to prohibit protests on public property without a prior permit.

“And what this provision did was basically squashed any spontaneous protest that would have occurred,” Emmerson said.

The bill increases penalties for inciting a riot or mob intimidation, vandalism of private businesses and government property, assaulting first responders and obstructing a highway during unlawful assemblies of two or more people. Violations of the law would be a felony punishable by one to five years in prison, or fines of up to $5,000.

“There are a couple of places where we have seen the language of this bill directly reflecting the nature of the Black Lives Matter movement,” she said. “…The defacing monuments provision was in reaction to the tearing down of many Confederate monuments during the Black Lives Matter movement. and another example of this direct reflection is the affirmative defense that this bill created for drivers who kill or injure individuals during a protest. Much of the Black Lives Matter movement demonstrations were taking place on public streets and highways, often blocking traffic and so this affirmative defense was in direct reaction to the nature of those protests.”

The bill passed in the Georgia Senate in March 2022 but ultimately but did not make it to the House floor for a vote before the end of the legislative session.

Republican Sen. Randy Robertson said he brought forth the proposal after racial justice protests in Atlanta and around the country in 2020 turned violent, resulting in damaged property and buildings.

“What this bill does is it protects the rights of any Georgian to go out there and exercise their First Amendment rights under the Constitution of the United States of America about any issue they choose to without fear of being assaulted or hurt,” Robertson said.

Georgia’s new lieutenant governor, Burt Jones, was a co-sponsor of the bill. Emmerson noted that some form of SB 171 is likely to be brought back in the upcoming January 2023 legislative session.

A similar bill (HB 2) in Alabama passed in the House but stalled the Senate after a similar version was initiated in 2021. The bill defined a riot as the assemblage of five or more people “engaging in conduct which creates an immediate danger of and/or results in damage to property or injury to a person.”

A rioter would also be in violation by refusing a law enforcement officer’s order to disperse, and the proposal gives law enforcement authority to arrest someone for a violation if the officer witnessed or even has probable cause of a violation; a person who blocks vehicular traffic would be mandated to serve a minimum of 30 days in jail under the proposal.

Free speech, protest legislation over the years

Stemming from Dakota Access Pipeline demonstrations of 2016, which drew demonstrations from native tribes and their supporters, Georgia lawmakers attempted to make protesting infrastructure a crime.

The proposed Protecting Georgians Against Terrorism Act redefined domestic terrorism to include protesting critical infrastructure or public or private systems, functions or assets, which provide or distribute services for the benefit of the public including but not limited to, energy, fuel, water, agriculture, health care, finance or communication.

The bill would have made it illegal for protests to target power plants, energy pipelines, water treatment facilities, damns or reservoirs, etc. and violations would be a felony punishable by up to five years in prison.

While the bill was passed in the Georgia Senate, it ultimately failed in the Georgia House of Representatives in March 2017.

More recently, a similar measure was approved in Alabama that adds {span}new criminal penalties for protesters on pipeline property. The bill expands the definition of “critical infrastructure” under Alabama law to include pipelines and mining operations. Under the new law, if a person interrupts or interferes with the operations of critical infrastructure, they would additionally be guilty of a Class C felony, punishable by at least one and up to 10 years in prison.{/span}

Campus Free Speech

Esserman recalled several controversial speakers, often with far-right opinions, who were protested and shouted down by students at colleges and universities in 2018.

Some of the notable speakers include white nationalist leader Richard Spencer who spoke at the the University of Florida, and Milo Yiannopoulosis, a British alt-right political commentator whose messaging often centers around anti-Islam, anti-feminism and anti-social justice, who spoke at UC Berkeley.

SB 339 as initially proposed had extreme disciplinary provision of suspension or expulsion for students in violation. Amendments to the bill state that schools must must impose the least restrictive content neutral time, place and manner a protest can occur.

Under the amended version of SB 339 colleges and universities must also provide facilities and resources to all student groups and invited speakers.

“Requirements of the current bill ensure that more speech on campus is being protected and following amendments which removed those extreme disciplinary provisions,” Emmerson explained of the 2018 bill signed by then-Gov. Nathan Deal.

Similar to other states, this year Gov. Brian Kemp signed the FORUM{span} (Forming Open and Robust University Minds){/span} Act to further protect speech rights on campus.

{span}”Freedom of expression is one of this great nation’s fundamental liberties,” {/span}{span}Kemp said after signing the law.{/span}{span} “Here in Georgia, we will protect those rights and that which is appropriate for any place of higher learning — the ability to learn of different ideas.{/span}

The bill prohibits free speech zones on campuses or areas that limit free speech to occur only within those zones.

“It’s interesting to note that these are speech protective bills in reaction to conservative movements, usually protecting conservative speakers that were being shouted down during the demonstrations in 2018. and that trend is largely due to our current political climate,” Emmerson said.