In Wake of Capitol Riot, GOP Legislatures “Rebrand” Old Anti-BLM Protest Laws

Within one day of last week’s attack on the Capitol, at least three states introduced legislation to criminalize protest. The bills, advanced by Republican lawmakers in Florida, Mississippi, and Indiana, do not represent new strategies designed specifically to prevent future right-wing insurrections. Rather, they draw from a set of policies that numerous state legislators introduced this summer in order to appear tough on protests against police brutality.

Florida’s and Mississippi’s bills in particular represent a new brand of anti-protest laws on steroids, creating penalties for a wide array of activities, from damaging monuments to obstructing traffic. The bills include measures that could encourage harsh law enforcement responses to protests as well as provisions meant to prevent local governments from reducing police funding.

The narrower Indiana bill would broaden the definition of rioting — which the Florida bill did as well — and would criminalize camping at the Indiana state Capitol. The Mississippi bill would also allow the state to strip unemployment benefits from anyone who pleads guilty to participating in disruptive protests.

“The concern is that the attack on the Capitol will be used to push the kind of legislation we’ve already seen, especially in response to this summer’s racial justice protests.”

Civil liberties advocates warn that the three bills are only the tip of the iceberg. “It’s important to think about these bills as not just responses to the attack on the Capitol,” said Elly Page, creator of the International Center for Not-for-Profit Law’s U.S. Protest Law Tracker. She started the database to monitor a wave of anti-protest bills that began around the time of President Donald Trump’s election, in the wake of the movement against the Dakota Access oil pipeline at Standing Rock, and widespread police brutality protests.

“The concern is that the attack on the Capitol will be used to push the kind of legislation we’ve already seen, especially in response to this summer’s racial justice protests,” Page said.

Amid nationwide actions against police brutality this past summer, a number of states introduced new legislation expanding penalties for rioting, unlawful assembly, or civil unrest. In Ohio, New York, and Michigan such bills were defeated — as was federal legislation that would have allowed the U.S. attorney general to withhold federal funding from local officials if they were deemed to have failed to take sufficient measures to deter or prosecute riot-related activity.

But Tennessee’s anti-protest bill passed, and a total of eight states still have legislation pending that would expand penalties for “rioting” or participating in certain types of protests.

Simultaneously, states have continued to advance so-called critical infrastructure bills, aimed at criminalizing protests against the fossil fuel industry. The “critical infrastructure” bills are promoted by the right-wing American Legislative Exchange Council, or ALEC, a membership group that links up industry groups and state legislators to produce model legislation that is often introduced nearly verbatim. Ohio’s governor signed its new critical infrastructure law on Monday, and four other states passed such laws in 2020. (ALEC denied that it had any role in the spate of post-January 6 anti-protest bills.)

Although past anti-protest bills have certainly included a range of new rules under one bill, Page said this approach of “throwing everything but the kitchen sink” at the issue of disruptive protests appears to be new. She pointed to Missouri and South Carolina, which both introduced wide-ranging anti-protest legislation in December, as additional examples.

Together, the “critical infrastructure” and other anti-protest laws constitute a renewed push to criminalize certain kinds of dissent.

Page underlined that new laws are unnecessary. “Some lawmakers will want to look like they’re doing something in response to what happened last week,” she said. “But police and prosecutors have more than enough tools to address what arose on the Capitol.”

Florida Gov. Ron DeSantis speaks to the crowd before a Make America Great Again campaign rally in Tampa, Fla., on Oct. 29, 2020.

Florida Revives BLM Bill

Last September, standing alongside more than a dozen Florida law enforcement officers at the Polk County Sheriff’s Office, Republican Gov. Ron DeSantis announced the “Combatting Violence, Disorder and Looting and Law Enforcement Protection Act,” a blueprint for the bill introduced in Tallahassee last week.

There was no doubt it was a response to the police brutality protests that had swept the nation after George Floyd was killed by Minneapolis police in May. “You know, recently in our country we’ve seen attacks on law enforcement, we’ve seen disorder and tumult in many cities across the country,” DeSantis said in September. “We need to do more in terms of having a strong legislative response, so that we do not always have to play whack-a-mole any time you have situations like this develop.”

DeSantis said the legislation would be a “focal point” in the next legislative session. And in November, he went further, drafting “anti-mob” legislation that would expand Florida’s “stand your ground” law, making it easier to shoot and kill with impunity people looting property. He had also tried to push state legislators to pass his proposal ahead of November elections, during a special organizational session not typically used for legislating. According to Florida Democratic State Rep. Anna Eskamani, several state senators had concerns with DeSantis’s earlier proposals affording impunity to people who attack protesters, and some of those pieces didn’t make it into the new bill.

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It wasn’t until the day of the attack on the Capitol, however, that a version of the bill was finally introduced. By then, DeSantis’s rhetoric had changed. At a press conference last Thursday, DeSantis framed the measure as being aimed at protecting against incidents like the attacks at the Capitol. “I hope maybe now we’ll get even more support for my legislation because it’s something that needs to be done,” he told reporters.

The bill is raising concerns among rights activists. The American Civil Liberties Union of Florida strongly criticized DeSantis’s proposals and the current bill, condemning the governor for trying to “rebrand” his crackdown on protests against police brutality as concern for what transpired at the Capitol last week.

“He said that was his priority in direct response to the protests for racial justice that were happening across the state,” said Kara Gross, legislative director and senior policy counsel at the ACLU of Florida, referring to DeSantis’s proposals in the fall. “What he’s doing now is, he’s trying to rebrand it. And he’s trying to disingenuously say that, ‘Oh, we really need this,’ because of what happened in D.C.”

“We very well know that this was a response to the Black Lives Matter movement.”

“Gov. Ron DeSantis is mini-Trump. And he is so disingenuous in even speaking on what took place on January 6 because he is complicit to it,” said Eskamani, the state representative. “We very well know that this was a response to the Black Lives Matter movement.”

The latest version of Florida’s bill, which Republican State Rep. Danny Burgess introduced on Wednesday, raises certain charges from misdemeanors to felonies; creates new crimes including “mob intimidation”; seeks to protect Confederate monuments; usurps local control of policing by allowing state reviews of local decisions to reduce police funding; and waives sovereign immunity for municipalities, which would allow individuals to bring civil lawsuits against local authorities for not providing enough law enforcement protection.

The bill also blocks civil damages for people harmed as part of protest actions, for example if someone is injured by a car that drives into a demonstration. Under the bill, anyone arrested at a protest would be detained until their first appearance in court — a measure typically reserved for cases where defendants pose an immediate threat to public safety. Burgess did not respond to requests for comment.

“Any insinuation by the governor or legislative leaders that this bill is necessary to keep the public safe or prevent property damage is absurd,” said Gross, of the ACLU Florida. “The single intent of this bill is to silence and criminalize Black protesters and their allies who are exercising their First Amendment rights.”

Members of the Indiana National Guard patrol the streets during a demonstration in solidarity with Black Lives Matter in downtown Nashville, Ind., on June, 20, 2020.

Draconian Bills

Mississippi politicians have said little so far about the sprawling anti-protest bill introduced the day after Trump supporters stormed the Capitol, but its text offers some clues about the provenance: The Mississippi bill bears the exact same name as the September version of the Florida bill pushed by DeSantis and contains much of the same language.

As in Florida, the Mississippi bill creates severe penalties for a remarkable array of activities. If the bill passed, a group of six or more people that threatens property or “disturbs any person in the enjoyment of a legal right” could face up to three years’ imprisonment and a $5,000 fine — essentially criminalizing any protest that happens to annoy a bystander. If the person traveled from another state to participate, the minimum penalty would be three years’ imprisonment. The bill would also create new jail sentences and fines for blocking traffic, throwing things, pulling down monuments, and causing emotional distress to a protest bystander. Anyone who pleads guilty to any of the new crimes would no longer be eligible for unemployment benefits; any government employee who pleads guilty would lose their job; and anyone aiding a person who commits the new crimes could also face charges.

The bill also serves to incentivize harsh police crackdowns by encouraging victims of crimes perpetrated during a protest to recover damages from local governments whose policing was “negligent” and preventing those who unlawfully participate in protests from suing local agencies such as police. It also includes a provision barring cities and counties from reducing police department budgets except in proportion to reduced revenue. And it expands the state’s “stand your ground” law to allow business owners to kill someone in defense of their company property if there’s rioting nearby.

The Indiana bill, also introduced one day after the insurrection at the Capitol, would broaden the definition of rioting and criminalize camping at the Indiana state Capitol complex. Protesters held nine consecutive days of sit-ins at the state Capitol in June. Under the new bill, a gathering of three or more people who simply obstruct law enforcement or any other government function could be imprisoned for a minimum of 30 days. The bill would also create a minimum 30-day sentence for anyone convicted of battery against a law enforcement officer, firefighter, or emergency medical service provider.

A second Indiana bill, introduced days before the Capitol unrest, contains a wider array of protest-related penalties, including denying state benefits to people convicted of rioting. (State legislators pushing the Mississippi and Indiana bills did not immediately return requests for comment.)

The idea that states are pushing these measures now to crack down on criminal activity is a farce, said Eskamani: “It’s all these distractions and an attempted effort to basically elongate these controversies — because it serves the Republican Party.”