Q&A with human rights lawyer James Tager on what alarms him most about the legislative response to recent protest movements
George Floyd’s murder at the hands of police, captured on cell phone video seen around the world, sparked mass protests for racial justice. A new generation took to the streets and halls of power to raise their voices, leading to real changes in policy and in the way Americans talk about race and policing. But the movement for Black lives also spurred an explosion of legislation introduced in statehouses across the country that would restrict protest rights, alarming free expression champions. To understand the role of the First Amendment in protest movements and examine the current threats to the right to assemble and speak out, FAC spoke with James Tager, a human rights lawyer who directs research at PEN America, a free expression advocacy organization, on his research into threats to First Amendment protections.
This is part of a series of interviews on the power and peril of speaking out, standing up for and documenting the movement for Black lives.
This interview was conducted in July 2021 and has been edited for length and clarity.
Q: What has your research with PEN America found about how state governments have responded to people using their First Amendment rights in historic ways?
A: We at PEN American, which is a literary and free expression advocacy organization, put out a report in May 2020 called “Arresting Dissent,” our analysis of the fact that between 2015 and 2019 over 100 bills, 116 bills specifically, had been proposed in state legislatures across the country to limit our right to protest. That was our report in May 2020, which was two days after George Floyd was killed, and we saw a rise in anti-protest legislation then. A lot of those proposals appear to be specifically aimed at specific protest movements, and Black Lives Matter is the foremost example of that.
You would see specific tactics that would be targeted, such as obstruction of highways or obstruction of roads in response to Black Lives Matter movement. You would see a rise in criminalization of those types of activities or stronger penalties for that type of activity in ways that clearly indicate that state [lawmakers] had specific movements in mind when they were implementing – or attempting to implement – these laws. You would see legislators actually say, “We need to pass this, because we can’t have Antifa” or “we can’t have these types of protests.” What they would try to do is essentially depict the protests as fundamentally unwholesome, or outside the bounds of constitutionality, or inherently quote-unquote un-American in some way that gave them license to legislate against it.
We did a follow-up report called “Closing Ranks.” From June 1, 2020 through March 15, 2021, state policymakers introduced at least 100 anti-protest proposals in 33 states. What those numbers seem to indicate is that the trend of introducing anti-protest bills has exploded — it has really reached an alarming rate.
This is an issue that is growing in importance and doesn’t seem to have any sign of naturally stopping itself. We are seeing legislators across states – including federal legislators – essentially copy and paste from each other. Basically, there’s a subset of anti-protest ideas floating around that are increasingly manifesting themselves as legislative proposals. Many of these bills don’t pass, but some of them do. Among the bills that don’t pass, we like to warn [people] not to sleep on those bills, not to assume that they’re not a problem, because they shift the tone and the boundaries of the conversation.
Perhaps the most frustrating thing is the way that this onslaught of bills helps to shift the discussion around protest toward the idea of expanding the sphere of illegality for protests, seeing protests increasingly through the lens of actual or potential illegality rather than focusing on protest as a right that is fundamental to us as humans and as Americans and working to enshrine that rather than degrading it.
Q: Can you talk about how these bills potentially threaten our First Amendment freedoms?
A: One thing we noted in our last report, Closing Ranks, is we’re seeing proposals to basically strip away government benefits from protesters who are convicted of something relating to their protest behavior or in some cases even just charged, not convicted. When it comes to the First Amendment, it is our belief that a lot of these bills do not pass constitutional muster, but even then those are court cases that could take years to work themselves out. Even if the courts correctly struck down every bill that violated our constitutional rights, there would still be a cumulative effect of degrading and denigrating the space for protest in the U.S. because these bills would send the clear signal to potential and actual protesters that there are potential serious consequences for engaging in the protest.
Any of these laws will really give a lot of power to police officers to crack down more harshly on protests and will send a sort of green light that that type of behavior is OK. One type of proposal we’re seeing establishes some type of immunity for drivers of cars who hit protesters.
One of the significant commonalities is how they give broader discretion to police in treating protest-related activity as a crime.
Q: What are some of the rationales lawmakers have given for proposing these bills and how does it square with the realities of what has been documented as mostly peaceful protests?
A: Legislators, in proposing these bills, may paint a skewed, politically-convenient picture of what’s happening at protests. Florida Gov. Ron DeSantis proposed [a bill called] “Combating Violence, Disorder, and Looting and Law Enforcement Protection Act.” In his proposal, he railed against “professional agitators bent on sewing disorder and causing mayhem in our cities.” “Crazed lunatics” was another quote. “Scraggly-looking Antifa types” was a third quote. As well as implying that protestors were being funded and organized by external forces, which is this common rhetorical tactic – conspiracy tactic – that people proposing these bills may often raise as attempts to discredit protest movements. There’s this idea of painting protests as brought on by external sources. This is straight from the Autocrat’s Playbook.
Q: Are there any lessons for how the media has covered protests?
A: Fewer than five percent of Black Lives Matter protests involved protester violence. That’s probably different from what many Americans saw on their news. Anti-protest proponents really benefit from the fact that public perception of violence among protests is higher than data appears to suggest.
Protesters began camping out outside Tennessee government buildings in June 2020, demanding to meet with their elected officials. Instead, the governor convened a special legislative session in August 2020 to basically pass an anti-protest bill that would essentially try to criminalize that type of behavior. And they tried to pass it alongside emergency pandemic-related bills. The Tennessee General Assembly met and deliberated for only three days, and the bill’s sponsor, House majority leader William Lamberth, was asked, ‘Have any officers been injured during protests at the state capital?’ He was unable to provide any examples. And that really illustrates this interesting dynamic where this is being positioned as an emergency response without an emergency.
I think Republican legislators see this as a winning issue, particularly because they don’t have to engage with actual protests. They just get to engage with this kind of made-up version of hyper-violent protests that they’ve painted, or have had painted for them.
Q: You found that the majority, 73 at one count, of these anti-protest proposals came after the Jan. 6 Capitol riot. But your report said it would be misleading to conclude that these bills were really a result of the Capitol siege. Can you talk about that?
A: Legislators were looking to essentially try to criminalize things like Black Lives Matter protests before Jan. 6, and they were looking to do the exact same thing after Jan. 6. Overall, the bills that we’ve seen attempting to restrict our protest-related rights, even after Jan. 6, are far more motivated by legislators’ discomfort with things like the Black Lives Matter movement or things like anti-pipeline protests than with the Jan. 6 Capitol Hill riot.
Even if the bills were written with the Capitol Hill riot in mind, there’s evidence suggesting that they would still disproportionately affect marginalized groups’ protests.
Q: Did protesters in the Civil Rights era [of the 1960s] face government backlash? Was it as widespread as what you’ve identified in recent years?
A: The Civil Rights movement, as well, galvanized a response from state-level legislators who tried to pass laws essentially trying to criminalize the Civil Rights movement, including even trying to fixate on tactics that were more common or raising penalties for protesters who wanted to participate in the Civil Rights movement. And we’re seeing the same today. In that way, there is a link, not only in the continuity of the Civil Rights movement and Black Lives Matter, but also state-legislator attempts to use their legislative power against the movement.
Q: Do you think that the historic level of peaceful protest bodes well for the First Amendment, that this means more support for and awareness of First Amendment freedoms?
A: I’m concerned about the opposite. I’m concerned that these anti-protest bills – the ones that stand – will lead protesters to conclude that the First Amendment may be their right on paper, but that if they actually protest that the authorities are going to figure out some way to target them, and punish them for their participation in their protest, or for their speech, or for their protest-related conduct. That’s what these laws threaten.
These laws threaten to denigrate the right to petition, the right to assemble, the right to express oneself in fact.
Q: What else do you think people should be aware of?
A: There are a number of anti-protest bills and methods that states are using to copy each other. This is a dynamic trend that is accelerating. State legislators are doing this because they believe the political benefits of being seen as tough on Black Lives Matter or tough on protests outweigh the negatives.
People who are concerned about their First Amendment rights should be raising their voice.
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About James Tager:
James Tager, a human rights lawyer, is research director at PEN America, an organization that advocates for freedom of expression. He is co-author of the PEN America reports “Arresting Dissent: Legislative Restrictions on the Right to Protest” and its successor “Closing Ranks: State Legislators Deepen Assaults on the Right to Protest” He has lived and worked in Myanmar, Thailand and Cambodia.
About Cricket X. Bidleman:
Cricket X. Bidleman is the First Amendment Coalition’s summer 2021 intern via Stanford University’s Rebele Journalism Internship Program, which gives Stanford students the opportunity to gain journalistic work experience by providing stipends for internships with qualifying organizations.
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This project is directed by Ginny LaRoe of the First Amendment Coalition and produced by Dana Amihere of Code Black Media. To contact the First Amendment Coalition, write to FAC@firstamendmentcoalition.org.