Four states — North Dakota, South Dakota, Oklahoma, and Tennessee — have recently passed legislation restricting the rights of protesters, as part of a sweeping trend that has seen more than half the states consider implementing such restrictions. The laws range from increasing penalties for trespassing and rioting to even prohibiting protests in certain circumstances.
The new legislation not only penalizes citizens seeking to peacefully protest, but also threatens to interfere with journalists who cover and report on protests.
While the laws do “not call out journalists specifically…they [apply] with equal force to anyone present at a protest who accidentally steps off a sidewalk, or successfully criticizes a business practice. That includes journalists,” says Vera Eidelman, an attorney at the American Civil Liberties Union’s Speech, Privacy, and Technology Project.
Sanford J. Ungar, director of the Free Speech Project at Georgetown University, says, “There is a very real threat that reporters could be swept up in some of these draconian and bizarre laws. There’s no doubt that these laws are not only a menace to free speech, but also a menace to the free press.” The Free Speech Project’s online tool, the Free Speech Tracker, monitors free speech issues at all levels of government, with a focus on state legislatures’ recent attempts to regulate protests. (The Reporters Committee is part of a separate collaborative effort, the Press Freedom Tracker, that documents instances of interference with journalists.)
Though only four states succeeded in passing anti-protest laws, twenty-seven states considered anti-protest bills this year, according to Ungar. This wave of legislation comes as a response to recent high-profile demonstrations, including protests this year at the Presidential Inauguration in Washington D.C. and at the site of the Dakota Access Pipeline in North Dakota, as well as several related to police shootings.
Already, stakes for journalists covering protests are high. Journalists, like all private citizens, can legally observe, photograph, and record in public places. However, a press pass does not permit a journalist to access private property without permission, even if doing so for the purpose of newsgathering. Thus, attempting to cover a demonstration that moves onto private property can lead to trespass charges. Several journalists were charged with trespassing during the Standing Rock protests in North Dakota this year.
Even on public property, journalists do not have a special right that the public does not have. So if a protest march is designed to shut down a public highway, journalists risk arrest by entering the highway with those protesters. In the last month, at least 10 journalists were arrested in St. Louis during ongoing protests following the acquittal of a white police man who killed Anthony Lamar Smith, an African American man. Some of the journalists were among the 143 protesters arrested for blocking traffic, according to the Chicago Tribune.
If a protest becomes unruly, journalists risk being grouped with protesters and arrested for charges such as rioting. Rioting charges are particularly threatening to journalists covering demonstrations because they are often liberally applied by officials at protest sites, and carry hefty penalties. At Inauguration protests in Washington, D.C. this year, for example, at least seven journalists were charged under D.C.’s rioting law, simply for walking with or near protesters who caused property damage.
Though officials dropped charges against six of the journalists, reporter Aaron Cantu still faces eight felony charges, including inciting to riot, rioting, and conspiracy to riot. If convicted, he could face up to 75 years in prison. The new anti-protest laws, which increase penalties for protesting even more, threaten to cause a chilling effect on journalists seeking to inform the public about newsworthy demonstrations.
In North Dakota, two new laws in particular threaten to affect journalists covering newsworthy protests. House Bill 1293 not only increases the penalties and fines for trespassing, but also adds guidelines to existing law that increases the breadth of what qualifies as trespassing.
Previously, an individual could only be arrested for trespassing if he or she entered or remained in a place where notice against trespass is either verbally communicated by the owner or clearly posted. However, HB 1293 makes an individual liable to trespass charges even when notice against trespass is not clearly communicated or posted, as long as a notice against trespass is “clear from the circumstances.”
This new addition to the law creates the potential that a journalist covering a protest could accidentally trespass onto private land that is not clearly marked as private, and face a Class B misdemeanor, which in North Dakota amounts to a maximum penalty of thirty days in prison, a fine of 1,500 dollars, or both.
Additionally, North Dakota’s House Bill 1426 significantly increases the penalties for rioting. Previously, people attending a protest who were charged with inciting riot faced a class A misdemeanor, for which the penalty is a maximum of one years’ imprisonment and a fine of 3,000 dollars. Now, under the new law, arrestees face a class C felony, which carries a maximum penalty of five years’ imprisonment, a fine of ten thousand dollars, or both.
South Dakota passed Senate Bill 176 in March of this year. Under the new law, the governor has the power to create “public safety zones” where protest groups larger than twenty people are prohibited.
Oklahoma’s House Bill 1123, which passed in May of this year, criminalizes trespassing on “critical infrastructure.” Critics of the bill note that the definition of “critical infrastructure” in the bill specifically targets areas with pipeline interconnections, which have been the site of many newsworthy protests at the Diamond pipeline which starts in Oklahoma, and runs through Tennessee and Arkansas.
Tennessee’s Senate Bill 902, passed this April, criminalizes protests that obstruct emergency vehicles, with a penalty of a $200 fine. This law may affect journalists’ ability to cover demonstrations at the Diamond Pipeline.
By increasing the penalties for protests, new anti-protest laws send a chilling message to the fourth estate. According to Eidelman, “such suppression of reporting is dangerous for freedom of speech [and] prevents the public from learning about matters of immense public debate and political concern.”
Ungar warns that more anti-protest laws will likely be proposed in the near future. He says, “This is a real trend that will pick up steam.”
“We must focus on what’s happening in state and local legislatures,” Ungar adds. “A lot of the these laws are bound to be tested in courts, but we need to shine a light on them.”
The Reporters Committee advises journalists who are covering protests to review these guidelines for avoiding legal trouble, and to remember that the Reporters Committee has a legal hotline available for any journalist who may run into trouble while covering a protest.