Lawrance Bernabo and Jennifer Martin-Romme
"If we don’t get no justice, they don’t get no peace!” activists shouted in the Minnesota State Capitol on January 26, after a House committee passed a law that could discourage—if not outright criminalize—nonviolent public demonstrations.
HF322 would allow cities to charge protesters for the costs incurred by “unlawful assemblies.” Two additional bills were read in the House and the Senate that would increase criminal penalties for obstructing highways, airports, and public transit.
The bills come on the heels of Black Lives Matter shutting down freeways in the Twin Cities three times in the last 18 months to draw attention to the deaths of African-Americans, particularly by law enforcement. In November 2015, after Minneapolis Police shot and killed Jamar Clark, protesters blocked I-94 for two hours, demanding release of the video footage. In July 2016, in the days after Philando Castile was shot and killed by St. Anthony Police, protesters blocked I-94 at 11 p.m. on a Saturday night and then blocked I-35 during Monday morning rush hour.
“If you block a freeway, you should go to jail,” said Representative Nick Zerwas (R-Elk River), who authored the House bills. “If you believe you have a First Amendment right to block a freeway, you are mistaken. That is against the law. Already.”
True, but entirely beside the point, according to Teresa Nelson, Interim Executive Director of the American Civil Liberties Union of Minnesota. “Yes, it’s true that [blocking traffic] is not protected speech. But civil disobedience is a time-honored tradition in this country, from the Tea Party to the Stonewall Riots. We celebrate these as turning points in our history...I don’t see a strong distinction between the Edmund Pettus Bridge—which was the civil rights movement blocking the highway [during Martin Luther King’s Selma-to-Montgomery march in 1965]—and the Philando Castile protests. Both were engaged in expressive conduct.”
“Expressive conduct” is the means by which we exercise our First Amendment rights, like assembling, marching, distributing leaflets, printing a newspaper, etc. Restrictions on expressive conduct must be “content neutral” and “narrowly tailored to a legitimate government interest.” Illegal activities are not protected by the Constitution, but an activity does not have to be legal to be expressive conduct.
After civil rights marchers shut down the Edmund Pettus Bridge on what became known as “Bloody Sunday,” they were essentially acquitted by a federal court for refusing to disperse when ordered to do so by police:
The law is clear that the right to petition one’s government for the redress of grievances may be exercised in large groups...These rights may...be exercised by marching, even along public highways.
That still does not make it legal to lock arms on I-35 during rush hour—nor does it make doing so safe. When Representative Kathy Lohmer (R-Stillwater) introduced HF1066, she cited the “incredible public safety risk” to drivers, to law enforcement, to emergency vehicles, and to the protesters themselves.
But when it comes to “expressive conduct,” even restrictions on illegal or dangerous behavior are not allowed to pose a “chilling effect” on the lawful exercise of First Amendment rights.
For example, HF322 would allow the government to collect fees from any participant in an “unlawful assembly,” which law enforcement already has the discretion to declare at any time. The bill does not require the government to show that the costs incurred were reasonable or that the individual(s) billed were responsible. “I might think twice about going to a protest where I might incur crippling financial liability as a result,” says Nelson.
She points to a number of reasons that freeway traffic grinds to a halt almost daily—from rush hour to collisions to inclement weather—all of which disrupt people’s lives, but which emergency services are equipped to handle. “Keeping traffic flowing is a legitimate government interest, but having such severe penalties for the rare occurrence of protesters blocking traffic is not narrowly tailored. This law is not needed, and it’s an excuse for radical governmental suppression of dissent.”
Zerwas told the committee about two constituents who were delayed by the Black Lives Matter shutdown of I-35. One missed an appointment with a specialist at Mayo after a three-month wait and had to reschedule for three months later. Another missed a flight to visit a dying parent.
“I think if you’re convicted of a crime where you intentionally inflict as much expense and cost upon a community as possible, you ought to get a bill. It should not be property taxpayers’ responsibility to cover for your illegal behavior...After reading dozens and dozens of emails from people that incorrectly believe they have a First Amendment right to block traffic, I think we need to do a better job teaching government in our schools.”
Nelson would probably suggest a very different civics lesson. “The city can already bill protesters for incidental traffic costs, things like barricades and redirecting traffic, but they can’t say, ‘We’re going to send in 200 riot cops, because we think things are getting out of hand, and you’re going to pay for them’...If you break a window right now, you’re already on the hook for financial liability, so that’s not what this is about...These bills are coming at a time when we’re experiencing an historic level of activism around the country, so it’s no coincidence that legislatures across the country are trying to silence dissent, particularly in communities of color.”
In North Dakota, home of the Standing Rock protests against the Dakota Access Pipeline, legislators proposed loosening the liability for drivers who accidentally hit a protester with their car. Tennessee took it a step further and suggested relieving drivers of liability if they run over a protester deliberately.
Indiana wants to respond to traffic obstructions with “all available law enforcement officers” using “any means necessary to clear the roads.” Protesters have dubbed it the “Block Traffic and You Die Bill.”
As protests raged against President Donald Trump’s travel restrictions, Denver began enforcing a rule against unpermitted political expression in the Denver Airport. The rule is so broad that one man was ejected from the airport for carrying a copy of the Constitution.
“All of law draws definitions and distinctions. That’s what it’s all about,” says First Amendment attorney Mark Anfinson. “[Nelson]’s argument is perfectly correct when we’re talking about University Avenue or Hennepin Avenue, but I think she’s incorrect when we’re talking about a freeway,” due to traffic speed and emergency vehicle access. “That doesn’t mean you reroute the ambulance; it means you reroute the protest. Especially since there are other legitimate venues to hold a protest besides the middle of I-35. That’s pure sophistry.”
However, Anfinson is troubled by the potential for a “back door” by which government officials could use ambiguous language in the proposals to grant a permit to one protest group, but deny a permit to a different group based on “viewpoint discrimination”—which is strictly forbidden by the Constitution. “The more ambiguous the law that affects free speech, the greater the risk it will suppress free speech. That’s the danger.”
Anfinson points to the word “highway,” which he says is not adequately defined in the bills, and it may be difficult to define in such a way as to distinguish one type of roadway from another. “You could certainly use it against protesters, even in advance of their protest...Because what does [“highway”] mean? Why can’t the police chief say no to some group he doesn’t like,” based on the notion that they are seeking a permit to protest on a “highway”?
“Law is a balance of interests. You can’t act like a back alley and a freeway are the same thing. The trick is where that line should be drawn. But we know it should be drawn somewhere between a back alley and a freeway.”