Ohio legislature considers anti-mask bill – 2018

Columbus, OH

Republican lawmakers in the Ohio House of Representative proposed legislation that would make it a crime to wear a mask with the intent of obstructing the law, the rights of others, or a person’s “legal duty.” The bill has drawn criticism from liberal protest groups and Democratic lawmakers.

Key Figures

Butler County Sheriff Richard Jones approached legislators about strengthening Ohio’s anti-mask laws in the wake of protests in Berkeley, California, and Charlottesville, Virginia. “I fully support freedom of speech, but when you start concealing your identity, that is a precursor for criminal activity,” Jones wrote in a Facebook post, according to WCPO Cincinnati. “I think enacting this law will be a deterrent to those contemplating committing a crime.” While it is already illegal to wear a mask while committing a crime in Ohio, Jones argues that enacting a broader anti-mask law would help law enforcement officers keep communities safe. “I believe that it’s not good when people throw rocks and they assault people and you can’t film or take pictures of who they are,” Jones told the Portsmouth Daily Times. “So I asked, could we get some legislation introduced that would at least start with the masked people that come to these demonstrations.”

Representative Bernadine Kennedy Kent is a Democratic member of the Ohio House of Representatives and a member of its Criminal Justice Committee. Kennedy Kent opposes this legislation and believes that an individual has a right to wear a mask. “For a number of reasons, people don’t want people to see their faces,” she told the Daily Times. “I mean, maybe it’s a job they have, maybe they don’t want their mom or dad to see what they’re doing… maybe they don’t want the police to know their identity to be maybe put on a list or something.”

Further Details

HB 423 would criminalize wearing a mask with the intent to “obstruct the execution of the law,” to “intimidate, hinder, or interrupt a person in the performance of the person’s legal duty,” or to “prevent a person from exercising the rights granted to them by the constitution or the laws of this state.” Violating the law would be considered a first-degree misdemeanor, punishable by up to 180 days in prison.

The bill’s two primary sponsors and five co-sponsors are all Republicans. Liberal protest groups view the legislation as a partisan attack and a violation of the First Amendment. Lee Thompson, a member of the the liberal Refuse Fascism group, believes this law was proposed to target protesters opposed to President Trump’s agenda. “I’ve never seen anybody in the Klan or Nazis or any of these fascists get arrested for wearing a mask,” he told the Daily TImes. “That’s just a lame, very well-used excuse. Who did they arrest? They arrest people who are progressive, who are on the left, who are fighting for something better than this … that we live under right now. That’s who gets arrested for this stuff, for real.”

Brian Taylor, an organizer of Black Lives Matter Cincinnati, similarly thinks that this bill is aimed at silencing advocates of social justice. “There is a climate in this country as more and more people take to the streets to demand justice on number of different front [sic] there is an attempt by those who represent the state to limit and curtail democratic rights and it’s on every level,” he told Fox 19.

Representative Bill Seitz, a primary sponsor of the bill, believes that HB 423 does not interfere with the freedoms guaranteed by the First Amendment. He told Fox 19 that “The aim of the bill is to give police one more de-escalation tool to use in these cases while preserving freedom to protest, masked or unmasked.”


Legislation Referred to Ohio House Criminal Justice Committee

The first hearing concerning HB 423 took place on December 12, 2017.

External References

HB 423

Should Ohio have broader ‘anti-mask’ law? WCPO Cincinnati

States push to criminalize wearing masks, Fox News

Ohio Bill Takes Aim at Masked Protesters, Portsmouth Daily Times

Sheriff, GOP lawmakers want to unmask protesters, Fox 19

Prepared by Will Haskell ‘18

February 23, 2018


Nebraska: Legislative Bill 718 (2018)

Nebraska unicameral legislature considers Free Speech bill

Lincoln, NE

The “Higher Education Free Speech Accountability Act” was introduced on the first day of the Nebraska legislature’s 2018 session. This bill would protect “spontaneous expressive activity” on public college and university campuses and impose sanctions on protesters who disrupt speakers on campus. It is inspired by the Goldwater Institute’s legislative model. Similar legislation was enacted in North Carolina and remains under consideration in numerous other states.

Key Figures

Senator Steve Halloran, a Republican, introduced this legislation. “I think there needs to be some clarity when it comes to higher education institutions,” he told the Omaha World-Herald. At a January hearing, Halloran argued that “we need to restore the public trust that the rights students, faculty and guests have to free expression will be protected within institutions of higher learning,” reported the World-Herald. LB 718 is co-sponsored by Senators Tom Brewer and Steve Erdman, both of whom are also Republicans.

Further Details

LB 718 would require the Board of Regents of the University of Nebraska to adopt a statement declaring that “the primary function of each campus is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate.” The statement would also confirm that “the campus must strive to ensure the fullest degree of intellectual freedom and free expression.” Finally, the Board of Regents must acknowledge that “it is not the proper role of the campus to shield individuals from…ideas and opinions individuals find unwelcome, disagreeable, or even deeply offensive.”

The bill also stipulates that students and faculty be permitted to assemble and engage in spontaneous expressive activity as long as it is not unlawful and does not disrupt the functioning of campus. LB 718 would eliminate the use of Free Speech Zones by declaring all public areas of campus to be “traditional public forums, open on the same terms to any speaker.” Crucially, the bill threatens sanctions against individuals engaging in protests or demonstrations “that materially and substantially infringe upon the rights of others to engage in or listen to expressive activity.”.

Halloran became concerned about the state of Free Speech on campuses after learning about an incident at the University of Nebraska-Lincoln (UNL) in August 2017. Freshman student Kaitlyn Mullen was allegedly verbally assaulted by an associate professor of English and a graduate teaching assistant. Mullen “had set up a booth, without university officials’ permission, for the organization Turning Point USA, for which she had hoped to form a chapter at UNL,” the Hastings Tribune reported. Turning Point USA promotes fiscal responsibility, free markets, and limited government. The organization compiles and publishes lists of college professors who are accused of liberal bias. The teaching assistant shouted profanities at the student as she handed out pamphlets, according to the Tribune, while nearby the professor reportedly held a sign that read “Put me on your watchlist.”

At a public hearing of the legislature’s Education Committee on January 30, Halloran noted that LB 718 was not introduced in response to this isolated incident. “The more my staff and I researched what was happening on college campuses across the nation.…it became abundantly clear that something needed to be done,” he said.

On January 25, the Nebraska University Board of Regents adopted a new policy affirming its commitment to Free Speech, reported The Daily Nebraskan. “As a result of this new policy, many have recommended that we declare victory and withdraw the bill,” Halloran said. “The major issue I have with their new policy is that it does not have a reporting component to the public, which would hold them accountable for their actions or inaction.”

LB 718 has drawn the support of the Foundation for Individual Rights in Education (FIRE). Joe Cohn, FIRE’s legislative and policy director, spoke at the January 30 hearing. “We think this bill is important to do as a legislature because policies can change,” he said. “We don’t want the forward progress that was made…to disappear when your watchful eye isn’t on it any further.” However, Cohn suggested an alteration to the bill to affirm the autonomy of the Board of Regents, reported The Daily Nebraskan. Opponents of this legislation argued that LB 718 violates a “1977 Nebraska Supreme Court case which interpreted the state’s constitution as erecting NU as an independent entity from the Legislature,” according to the Lincoln Journal Star. Rob Schager, chair of Nebraska University’s Board of Regents, had argued that LB 718 would indeed infringe upon the regents’ autonomy.

UNL law professor Eric Berger also testified at the January hearing, noting that “parts of the bill certainly violate the First Amendment,” reported The Daily Nebraskan. “The bill would invite expensive lawsuits to figure out its meaning and constitutionality,” he continued. Julia Schleck, an associate professor of English at UNL and the state conference president of the American Association of University Professors, testified that the legislation was unnecessary. LB 718 “implies Halloran considers the First Amendment to be inadequate,” she said. “Personally, I’m proud of our Constitution and the way in which the First Amendment has protected free speech in America.”

Ayat Aribi, internal vice president of the Association of Students for the University of Nebraska, also testified against the bill, alleging that “nothing has been done about the intimidation that [minority students] experience on campus,” reported The Daily Nebraskan. Aribi continued, “I haven’t had any state senators come talk to me about writing a bill in support of the football players [who kneeled during the national anthem] who received threats of lynching. We’re told to suck it up and move on with our lives.” She also claimed that conservative students “perceive critical thinking, self-critique and open discussion as attacks on their self rather than as a process of refining their ideas and arguments.”


Legislation Remains Under Consideration

After the bill’s initial introduction, Halloran amended LB 718 to address various concerns raised by its critics, namely by erasing language that previously directed Nebraska University to set specific policies and by providing more discretion to administrators. The bill was also expanded to include all state colleges and community colleges. Finally, the amended bill would recognize a right to counter demonstrations. LB 718 remains under consideration by the Nebraska legislature.

External References

LB 718

Halloran Introduces Free Speech Measure, Hastings Tribune

Controversial Nebraska Legislative Bill May Threaten Freedom of Speech on College Campuses, The Daily Nebraskan

UNL Faculty Say Free Speech Bill An Attempt to Squash Dissenting Opinions, Lincoln Journal Star

NU Officials, Nebraska Lawmakers are Making Separate Proposals on Free Speech on Campus, Omaha World-Herald

Senator Will Move Forward on Free Speech Bill Even After NU Policy, Lincoln Journal Star

Bill’s Backers, Foes Debate Free Speech on College Campuses, Omaha World-Herald

Prepared by Will Haskell ‘18

Uploaded February 13, 2018

Utah State Legislature – HB 54 – 2017

Governor signs bill banning “Free Speech Zones” at public universities

Salt Lake City, UT

House Bill 54, a law banning Free Speech Zones on the campuses of Utah’s public colleges and universities, was signed into law by Governor Gary Herbert on March 28, 2017. This legislation is one of four bills introduced by a Republican lawmaker to protect Free Speech on campus. The other bills, which addressed topics such as academic freedom and a student’s right to counsel, did not advance through the legislature.

Key Figures

State Representative Kim Coleman, a Republican, is the legislation’s lead sponsor. Coleman, who has a daughter attending a public university, represents a district in central Utah. Her bill was cosponsored by 12 Republican lawmakers in the Utah House of Representatives. Coleman believes that Utah’s public colleges and universities are suppressing Free Speech. “With increased turmoil on campuses at many of our nation’s institutions of higher education, we need to protect the speech of all our students, while protecting students from harassment and intimidation,” Coleman told The Daily Universe, a campus publication associated with Brigham Young University. This legislation “simply affirms many Supreme Court rulings that government property is a free speech area,” Coleman continued. On her campaign website, Coleman claims that “the First Amendment’s prohibition on government abridging the freedom of speech is being defied on 50% of our nation’s public campuses.”

Further Details

HB 54 protects students’ rights to gather peacefully in outdoor areas on campus. While the law permits college and university administrators to impose some time, place and manner restrictions on student speech, it requires that these restrictions be “narrowly tailored to serve a significant institutional interest.” Moreover, speech restrictions must be “based on published, content-neutral and viewpoint-neutral criteria.” Finally, the legislation creates a cause of action, allowing the Attorney General or any impacted students to sue a college or university for violating Free Speech rights.

By a vote of 71-0, HB 54 received unanimous support within the House of Representatives. The bill then advanced to the Senate, where it earned near unanimous support by a vote of 28-1.

HB 54 was at least partially inspired by recent Free Speech incidents at public colleges and universities in Utah. In 2015, three students at Dixie State University in St. George were prevented from displaying satirical portraits of political figures on campus. “It’s crazy, it’s frustrating,” Coleman told The Salt Lake Tribune, “to think that in 2015, that a public university would limit political speech.”

In another 2015 incident, campus police officers at Utah State University told students to remove anti-abortion messages they had drawn in chalk on campus walkways. A university spokesman later apologized for the incident and pledged that administrators would re-evaluate policies concerning student speech, according to The Salt Lake Tribune. That same year, campus police officers at Utah Valley University removed a political sign concerning gay rights since the sign did not receive prior approval from the administration, according to the UVU Review, a campus publication.

HB 54 was criticized by some Free Speech advocates for not doing enough to protect student speech. Fiorella Vasquez, president of the Young Americans for Liberty Foundation at the University of Utah, points to a Utah Valley University policy that encourages professors to report student speech in classrooms that is “too inappropriate, loud, or argumentative.” Vasquez wrote in The Salt Lake Tribune that HB 54 provides no protections to student speech that occurs inside the classroom.


Legislation signed into law on March 28th, 2017

Governor Gary Herbert, a Republican, signed this legislation after it received bipartisan approval in Utah’s House of Representatives and Senate.

Coleman’s other Free Speech legislation not enacted

Representative Coleman’s other Free Speech bills, relating to anti-harassment regulations (HB 103), a student’s right to counsel (HB 284), and academic freedom (HB 334) did not move forward within the state legislature.

External References:

HB 54

Kim Coleman, Utah House of Representatives

Commentary: Is free speech under attack at Utah colleges?, The Salt Lake Tribune

Utah lawmaker takes aim at campus free-speech rules, The Salt Lake Tribune

LDS Handbook Policy Has Real-Life Affect on Students, UVU Review

Campus Free Speech Amendments bill in committee, The Daily Universe

Bills aim to free up free speech on Utah college campuses, The Salt Lake Tribune

Utah college apologizes after students were told to erase anti-abortion messages, The Salt Lake Tribune

Prepared by Will Haskell ‘18

December 1, 2017

Iowa legislation could send protesters to prison for five years – 2017

Des Moines, IA

Senate File 111, a bill that would increase penalties for those who block traffic on Iowa’s highways, is being considered by a State Senate Subcommittee on Transportation. The bill, co-sponsored by nine Republican lawmakers, would charge individuals who intentionally block highway traffic with a Class D felony punishable by up to five years in prison. A similar bill, SF 426, was approved and recommended for passage by two subcommittees.

Key Figures

State Senator Jake Chapman, a Republican, is the legislation’s lead sponsor. In addition to representing a portion of southwestern Iowa in the State Senate, Chapman also serves as the chief operating officer of Midwest Ambulance Services. Citing a recent protest against Donald Trump’s election as president, Chapman criticized demonstrations that negatively impact commerce and public safety. “We are concerned about the protesters. We are concerned about emergency medical services being able to get to calls. We are concerned about coming around a curve on the interstate and all of a sudden you have blocked traffic and someone slams on the brakes and a semi comes up from behind and hits them,” he told The Des Moines Register. “Look, we have the right to protest. No one disputes that,” Chapman continued. “We encourage that. But there is an appropriate time and an appropriate place to do so. Interstates are not one of those places. That is what this bill does. It aims to stop that.”

State Senator Joe Bolkcom, a Democrat, opposes the legislation. He believes that the bill is a political reaction to anti-Trump protests and notes that Iowa already has laws in place to prevent disturbances on roads. “…I hope this bill doesn’t go forward. The last thing we need is more penalties on the books,” he told The Des Moines Register.

Rita Bettis, legal director of the American Civil Liberties Union of Iowa, raised concerns about how the proposed law would be enforced. “We all know that this legislation was drafted to respond to protesters in Iowa City following the 2016 General Election, and specifically, out of an expressed disagreement with their viewpoints as well as methods,” Bettis told The Register. “What we can say is that even if the law as written is determined to be facially neutral; whether it would be neutral as applied or target First Amendment protected activity is a separate question that could ultimately prohibit its use by law enforcement against protesters or demonstrators, even if it advances into law.”

Further Details

SF 111, introduced in January 2017, was proposed in response to a protest that occurred in November 2016. On November 11, three days after Election Day, more than 100 protesters blocked Interstate Highway 80 to oppose Donald Trump’s agenda, The Register reports. The demonstration blocked all eastbound traffic for 30 minutes. Explaining the motivation of the protesters, one participant in the demonstration told The Register, “[Trump] doesn’t represent me or my values, and I’ve been crying for days.”

SF 111 would impose harsh penalties on those who impede traffic on highways with a posted speed limit of at least 55 miles-per-hour. Those who violate the law could be charged with a Class D felony, which carries a prison sentence and a fine of between $750 and $7,500. Under current law, individuals who create an obstruction on a road may be charged with an injunction and creating a public nuisance. Less severe than the proposed bill, the current law punishes violators with up to two years in prison and a fine of between $625 and $6,250.

While SF 111 remains under consideration by a subcommittee on transportation, SF 426, a similar bill, has gained approval by two subcommittees. This legislation, proposed by the Committee on State Government, also penalizes protesters who obstruct traffic on highways. However, it draws a distinction between first, second, and third offenses. The bill “would classify a first offense as a serious misdemeanor with punishment of up to a year in prison and fine of up to $1,875. Second-time offenders would be charged with an aggravated misdemeanor and third-time violators would face a Class D felony charge,” according to The Des Moines Register.


Bill remains under consideration by subcommittee

SF 111 was referred to a subcommittee on transportation in February 2017. The subcommittee has not taken any action on the bill.

Similar legislation approved by two subcommittees and recommended for passage

SF 426 was approved by subcommittees on state government and the judiciary, respectively.

External References:

SF 111

SF 426

Iowa bill: 5 years in prison for highway protesters, The Des Moines Register

Bill cracking down on protesters blocking highways heads to Iowa Senate floor, The Des Moines Register

Bill criminalizing highway protests clears Iowa Senate subcommittee, The Des Moines Register

Bills Across The Country Could Increase Penalties For Protesters, Iowa Public Radio

Prepared by Will Haskell ‘18

October 17, 2017

Virginia General Assembly passes symbolic bill to protect Free Speech – 2017

Richmond, VA

House Bill 1401, a bill aimed at promoting Free Speech on college campuses, passed both chambers of the Virginia General Assembly and was signed into law by the governor in March 2017. This legislation inserted the following sentence into the Code of Virginia: “Except as otherwise permitted by the First Amendment to the United States Constitution, no public institution of higher education shall abridge the constitutional freedom of any individual, including enrolled students, faculty and other employees, and invited guests, to speak on campus.”

Key Figures

Delegate Steve Landes, a Republican representing a district in central Virginia, was the bill’s chief sponsor. He believes that the legislation will enhance Free Speech rights for university employees and speakers on campus. “I think it will allow universities to be able to point to the law and say it’s our goal and the state’s goal to promote free speech and to make sure we’re actively trying to do that,” Landes told The Cavalier Daily, a student-run publication at the University of Virginia and the oldest daily newspaper in Charlottesville. Landes continued, “I think universities can comply with this pretty easily. A couple other statutes already on the books promote free speech for faculty and students, so it would be just a restatement of that policy but also expanding it to include the groups of employees and invited guests.” Referencing recent protests concerning controversial speakers on campuses across the country, Landes said, “There have been some issues, not in Virginia but on other campuses, where faculty or speakers that have been invited onto campus are not allowed to speak by groups infringing on their First Amendment rights.”

Delegate David Tuscano, a Democrat representing Charlottesville and minority leader in the House of Delegates, voted for the legislation. However, he called on his Republican colleagues to defend the First Amendment against alleged threats from President Donald Trump. “Free speech is a core value on which this nation was founded, yet it is indeed under threat by a new president who bullies his critics and threatens to jail his political opponents,” he said, according to The Cavalier Daily. “While the First Amendment protects campus speech, we hope the Republican caucus will join us in fighting to protect the First Amendment under President Trump.”

Delegate John Bell, a Democrat, voted against this legislation, calling the bill “a solution looking for a problem.” He believed the legislation was unnecessary, telling The Cavalier Daily, “The Constitution guarantees free speech, I don’t know why we would need to guarantee it a second time.” In explaining his opposition, Bell also cited concerns about protecting hate speech. Referencing unspecified hateful remarks, he said “I don’t want to encourage that and this bill in some ways could” do so, according to The Cavalier Daily.

Democratic Governor Terry McAuliffe signed the bill into law without releasing a statement.

Further Details

HB 1401 amended Article 1 of Chapter 9 of Title 23 in the Code of Virginia to include a sentence about First Amendment rights at public colleges and universities. The legislative language was amended in the Senate to include the word “constitutional.” The final version of the bill passed the Senate by a margin of 36-4 and the House of Delegates by a margin of 79-16. While the bill earned votes from both Republican and Democratic lawmakers, every legislator who voted against it was a Democrat.

Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, called the legislation “unnecessary.” She told RVA Magazine, “The First Amendment already limits the ability of public universities to ‘abridge’ free speech by anyone on campus.”

In an editorial for The Daily Progress, a student at the University of Virginia School of Law, Erich Reimer, also acknowledged the bill’s redundancy, but underscored its symbolic importance. “HB 1401, while a symbolic bill with no material legal impact, demonstrates firmly the united front that the commonwealth is stepping forward in defense of our fundamental constitutional values. While today it might be conservative speech that is being silenced, tomorrow when the scales have turned it might be liberal speech,” he wrote.

However, Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education (FIRE), believes that the bill could impact university policies and increase compliance with the First Amendment. “One way to read this bill is that it’s simply a statement of what is already in the law,” he told RVA Magazine. “But if you’re in the compliance office of a public university of Virginia, not all of them are looking up common law, but they sure as heck know what the legislature said to them next term.” Cohn also predicted that the law’s implementation would be non-partisan. “Censorship is not a partisan action,” he told The Cavalier Daily. “People censor who they disagree with on both sides of the political spectrum.”


Governor Signed Legislation Into Law

Governor Terry McAuliffe signed this legislation without a statement on March 16, 2017. The bill went into effect on July 1, 2017.

External References:

HB 1401

Bill introduced in General Assembly to protect free speech at public colleges, The Cavalier Daily

McAuliffe signs free speech bill, The Cavalier Daily

Virginia Delegate Aimss to Secure Free Speech on Campus, No Matter the Subject, RVA Magazine

Defending free speech at Virginia colleges, The Daily Progress

Prepared by Will Haskell ‘18

October 4, 2017

South Dakota Legislature – Senate Bill 176 – 2017

Governor gets power to create public safety zones

Pierre, SD

An Act to preserve the use of public land, to ensure free travel, to enhance emergency response, and to declare an emergency” passed both chambers of South Dakota’s legislature and was signed into law by the governor in March 2017. This legislation allows him to establish “public safety zones,” in which protest activities can be limited and violators could face jail time. The law also imposes penalties on individuals who impede traffic by standing on highways.

Key Figures

Republican Governor Dennis Daugaard’s administration introduced this legislation, and the governor signed SB 176 into law on March 13, 2017. “My administration brought this bill to protect those who want to peacefully exercise their First Amendment rights, as well as the people who reside in and travel through our state,” the Governor said in a press release. “Legislators on both sides of the aisle voted to support this bill and I appreciate their recognition of the urgency of this issue.”

Further Details

SB 176 allows the governor to establish “public safety zones,” in which gatherings of more than 20 people are prohibited. Individuals found in violation of the protest restrictions could go to jail. Specifically, a first offense carries a minimum of 10 days, and a second offense within two years would be considered a felony, according to Courthouse News Service. “The governor’s goal is to be certain that the state has the authority to protect public safety and private property,” Governor Daugaard’s chief of staff, Tony Venhuizen, told Courthouse News Service. “The governor respects the rights of peaceful protesters and he knows the vast majority are not violent or dangerous.” He continued, “The reason for bringing this legislation is the protests in North Dakota and the upcoming construction of the Keystone XL pipeline in South Dakota. Governor Daugaard wants to learn from North Dakota’s experience to be prepared.”

Venhuizen was referring to the turbulent protests that occurred throughout 2016 in North Dakota regarding the Dakota Access Pipeline. Although construction on the pipeline was completed by the time this legislation was passed, President Trump’s support for the Keystone XL project prompted Daugaard to take action to regulate potential upcoming protests , according to South Dakota Public Broadcasting (SDPB). “We must be prepared to deal with those professional agitators who may come here to create chaos through unlawful means,” a spokesman for the governor told the Argus Leader.

Native American leaders denounced this legislation, expressing concerns about the law’s potential impact on civil liberties. “SB 176 comes dangerously close to restricting constitutional rights,” Remi Bald Eagle, a member of the Cheyenne River Sioux Tribe, told Courthouse News Service. “Nowhere in the constitution did it say anything about how many people can assemble peaceably. We also feel that the right of way on roads is for the public, which includes all the freedoms endowed to the public by the bill of rights. The tribe doesn’t support the blocking of traffic, but we do support the people’s right to assemble to the right and left of the road.”

Additionally, Native American leaders criticized the governor for failing to consult with them about this legislation. After signing the bill, Daugaard invited nine tribes to participate in a roundtable discussion about “potential protests,” according to a press release from his office. “If you want to have meaningful engagement with the population of the state, then you get their consultation prior,” Bald Eagle told the Courthouse News Service.

This legislation passed the State Senate by a margin of 21-13, and the State House of Representatives on a vote of 49-18.

The bill was initially proposed in the Senate in the form of a “vehicle bill,” something the Bismarck Tribune describes as “essentially [an] empty [vessel] when introduced with just the faintest hint of what is yet to come.” According to the Tribune, lawmakers use vehicle bills to avoid lengthy debates over controversial legislation. However, vehicle bills have been the subject of criticism from lawmakers on both sides of the aisle. The Tribune reports that a dozen Republican lawmakers wrote to South Dakota’s attorney general to complain that vehicle bills “effectively [bypass] the public committee process on the intended content, which deprives the public of their right to an open government provided for in our S.D. Constitution.” While SB 176 was initially introduced as a vague, 32-word bill relating to public safety, it was substantially amended and became a controversial 1,500-word bill.

Prior to the bill’s passage, tribal leaders threatened “to sue the state and close down reservation borders and highways,” if the legislation was approved, reports the Argus Leader. Brandon Sazue, chairman of the Crow Creek Sioux Tribe, claimed the bill unfairly targeted Native Americans, asking, “are they calling it an act of terrorism? Are they calling us terrorists?” reports the Argus Leader. “That’s why it’s going to divide. Because a majority of the protesters up at Standing Rock are Native American . . . And South Dakota is jumping on board and trying to copy North Dakota.”

State Representative Shawn Bordeaux, a Democrat, expressed skepticism about the legislation. “They’re all a little freaked out about state government,” he told SDPB. “We all have concerns about stuff being rammed down our throats.” State Representative Dan Kaiser, a Republican, also expressed frustration with the bill. “All of these laws are already on the books. Trespassing. Already a crime. If law enforcement moves in to grab a trespasser and somebody jumps in front of them, to physically obstruct them, well, that’s obstruction, so that’s a class 1 misdemeanor, that’s a crime. Blocking a road. Already a crime. All of these things are already covered,” Kaiser told SDPB. “I don’t know what kind of statement we are trying to make with this, but in my estimation it’s a very poor one.”

Other lawmakers defended the legislation. State Representative Larry Rhoden, a Republican, supported the bill, telling SDPB, “This isn’t about disrupting peaceful protestors that come and exercise their constitutional right to free speech. It’s about protecting them also, guaranteeing their rights by keeping the troublemakers—setting up a process where we can deal with the troublemakers and keep them out of the process,” Rhoden says.


Governor Signed Legislation Into Law

Governor Dennis Daugaard signed this legislation into law on March 13, 2017. The law included an “emergency clause,” reports the Courthouse News Service, rendering it effective immediately.

External References:

SB 176

Gov. Daugaard Signs Public Safety Bill, Office of Gov. Dennis Daugaard

Gov. Daugaard Signs Senate Bill 176 “Public Safety Bill” to Suppress Protest, The Sioux Empire

S.D. Passes Law to Crack Down on Protests, Courthouse News Service

Dakotas Propose New Protest Laws in Response to Pipeline Unrest, Courthouse News Service

South Dakota use back door to pass bills, The Bismarck Tribune

Ahead of KXL Approval, Lawmakers Compromise To Pass Governor’s Protest Legislation, South Dakota Public Broadcasting

Lawsuits, border closures possible over protest bill, The Argus Leader

Prepared by Will Haskell ‘18

August 29, 2017

Arkansas General Assembly – Senate Bill 550 – 2017

Governor vetoes bill targeting “mass picketing”

Little Rock, AR

“An Act to Protect Access to Places of Employment, Rights of Way, Private Real Property, and Public Infrastructure; and For Other Purposes” passed the Arkansas State Senate and House of Representatives, but was vetoed by the governor. The bill would have increased penalties for individuals convicted of “mass picketing,” threatening protesters with up to a year in prison.

Key Players

State Senator Trent Garner, a Republican, sponsored Senate Bill 550. He represents a district in Southern Arkansas.

Governor Asa Hutchinson, a Republican, vetoed Senate Bill 550, citing the need to protect freedom of speech and freedom of assembly, as guaranteed by the First Amendment to the U.S. Constitution.

Further Details

Senate Bill 550 would have elevated “mass picketing” to a Class A misdemeanor in Arkansas, imposing increased penalties on individuals convicted of the crime. The bill established a broad framework for defining mass picketing, including protests “at or near a business, school or private facility.” If signed into law, the bill would have expanded law enforcement’s authority to shut down protests and penalize their participants. Specifically, it would “allow penalties of a year in jail for people” who protest on public roads or hinder employees from entering their place of work, according to the Arkansas Times. Finally, this legislation would have established a civil liability for protesters, according to The Southwest Times.

Senate Bill 550, sponsored by State Senator Trent Garner, drew criticism from the United Nations Human Rights Commission, which considered it to be part of an “alarming trend to curb freedom of assembly in the US.” Garner said his legislation was a “response to several recent protests he believed interfered with other people’s rights, including one that blocked a street in Fayetteville and one in which Black Lives Matter protesters blocked Interstate 40 in Memphis,” reports The Southwest Times.

The legislation passed the Arkansas House of Representatives on a vote of 58-21, and the State Senate by a margin of 18-8. Governor Hutchinson vetoed the legislation, citing concerns about the bill’s vague language and detrimental consequences for civil liberties in Arkansas. “On its face, SB 550 attempts to ensure public safety. Public safety is, first and foremost, a priority of government… That being said, a balanced view is always required in approaching public policy. Benjamin Franklin’s famous remark, ‘Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety,’ comes to mind with regard to this legislation,” the governor said in his veto message. The Arkansas Chapter of the American Civil Liberties Union praised the governor’s decision, condemning the bill’s “heavy-handed attempt to restrict the freedom of assembly and criminalize constitutionally-protected speech.”


Governor Vetoed Bill

Governor Hutchinson vetoed the legislation, invoking a need to protect First Amendment freedoms. Senator Garner accepted the Governor’s veto and said he would not seek to override it, reports Arkansas Online.

External References:

SB 550

One to veto: An anti-1st Amendment bill from Trent Garner, The Arkansas Times

UN rights experts urge lawmakers to stop “alarming” trend to curb freedom of assembly in the US, United Nations Human Rights Office of the High Commissioner

Senate passes bill against ‘mass picketing,’ The Arkansas Times

Statement on Gov. Hutchinson’s Veto of Anti-Protest Bill SB 550, ACLU of Arkansas

Governor Hutchinson’s Veto Message

Prepared by Will Haskell ‘18

August 22, 2017

Colorado General Assembly – Senate Bill 62 – 2017

Colorado passes law banning “free speech zones” on public campuses

Denver, CO

“An Act Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education” was passed unanimously by both chambers of Colorado’s state legislature and signed into law by the governor in April 2017. This law abolished “free speech zones” on the campuses of public colleges and universities.

Key Figures

State Senator Tim Neville (R) is elected from Senate District 16, which contains portions of Boulder, Denver, Gilpin and Jefferson Counties. Neville is an original sponsor of the legislation. He wrote an opinion piece in The Denver Post titled “Free speech should not be zoned,” in which he argued that institutions of higher education have recently “struggle[d] with thoughtful debate, and instead put forth a litany of criteria for students to exercise their rights to speech, the most egregious of which requires students to limit their opinions to ‘free speech zones.’ These zones are contrary to the very missions of universities.”

State Representative Jeff Bridges (D) is elected from House District 3, which contains a portion of Arapahoe County. Bridges is also an original sponsor of the legislation. At a committee hearing,  Bridges said, “We’ve become too comfortable these days getting our news from people we already agree with,” the Post reports. Bridges continued, “We silence those we disagree with either by tuning them out or by marginalizing them.”

State Representative Stephen Humphrey (R) is elected from House District 48, which contains a portion of Weld County. Humphrey too is an original sponsor of the legislation. In an interview with Colorado Politics, he said “I think once people heard what the bill was really about, they were like, ‘Well, there are no bogey men in the bill.’ They found out it’s really about free speech and not restricting it to some postage stamp area in a corner of the campus, which I think we can all agree is a good idea.”

Governor John Hickenlooper (D) signed the legislation into law on April 4, 2017.

Further Details

The term “Free Speech zone” typically refers to designated areas on a college or university campus that are available for students to express their thoughts freely. According to the Foundation for Individual Rights in Education (FIRE), “Roughly 1 in 6 of America’s top colleges and universities have free speech zones.” Many free speech advocacy organizations, including FIRE, have criticized these zones for, in effect, restricting the ability of students to exercise their First Amendment rights elsewhere on campus.

The Colorado chapter of the American Civil Liberties Union, along with FIRE, supported the bill. Many First Amendment advocates expect this bill to increase Free Speech on Colorado campuses by expanding the opportunities for students to exercise their First Amendment rights. Prior to its passage, numerous Colorado colleges and universities utilized Free Speech zones. For example, “Colorado State University–Pueblo requires demonstrators to apply for permission to gather three days in advance, without publishing the criteria by which those applications will be evaluated,” according to FIRE. Moreover, “the University of Colorado Boulder designates only one location on campus where students can assemble to exercise their free speech rights without obtaining advance permission, and requires 10 days’ notice for all other outdoor areas on campus.”

In addition to abolishing Free Speech zones at public colleges and universities, this law also “allow[s] students to sue — and recover attorneys’ fees and court costs, though not damages — if they feel their rights have been violated,” the Post reports. While the law allows administrators to restrict “the time, place, and manner,” of expression, according to The Denver Channel, the restrictions must be “reasonable,” “justified without reference to the content of the speech,” and “narrowly tailored to serve a significant governmental interest.” Administrators must also “leave open ample alternative channels for communication of the information or message.”

SB 62 won unanimous passage in both chambers of Colorado’s legislature. A compromise between Republicans and Democrats in the state senate resulted in the addition of voter registration drives to a list of protected expressions on campus, Colorado Public Radio reports.

As legislators considered the bill, students testified about their experience with Free Speech zones. Juan Caro, a student at Colorado State University and a member of Young Americans for Liberty, told legislators that “College campuses are cradling students from different opinions that they don’t agree with and we’re really not preparing students for the real world,” the Post reports.

While university administrators were initially skeptical about SB 62, Patrick O’Rourke, a lawyer for the University of Colorado Board of Regents, testified in support of the legislation, The Complete Colorado reports. Responding to a legislator’s question about whether this bill might increase hate speech, O’Rourke said, “Sometimes free speech is more than just hurt feelings. But the Constitution grants a very broad realm of constitutional protection. It’s only when free speech is inciting violence that it becomes unprotected. We view our obligation as not to silence anybody … but to make sure if somebody is going to speak, even if it is controversial, even if some would say the speech is hateful, that it gets to exist, but we want to make sure we’re maintaining the safety and integrity of the environment.”

Although this legislation passed both legislative chambers without opposition, some Colorado students reacted negatively to the change of policy.  “I’d much more prefer to have it in a designated area,” one University of Colorado, Colorado Springs student told News Channel 13. “I mean if you’re walking to class now, you might have to walk through protests potentially.” Additionally, a Colorado State University student told the Collegian, “You no longer have an area you can avoid to not hear hate speech disguised as free speech. Marginalized people will have a voice, but people who have dominant identities will be able to push their privilege further. Now policing of campus is going to be a lot harder in terms of hate speech.”


Governor Signed Legislation Into Law

Governor John Hickenlooper  signed this legislation into law on April 4, 2017 without comment, rendering the law effective immediately.

External References:

SB 62

Humphrey: No bogey men in campus free speech bill, Colorado Politics

Free speech should not be zoned, The Denver Post

Free Speech Zones on Campus, FIRE

Governor Signs Bill To Ban ‘Free Speech Zones’ On Public College Campuses, Colorado Public Radio

Bill banning ‘free speech zones’ at Colorado public colleges signed by governor, The Denver Channel

Prepared by Will Haskell ‘18

August 22, 2017

In wake of environmental protests, legislation aims to protect critical infrastructure – 2017

Oklahoma Legislature – House Bill 1123

Oklahoma City, OK

“An Act relating to crimes and punishments; making certain acts unlawful; providing penalties; defining term; providing for codification; and declaring an emergency,” was passed by both chambers of the Oklahoma State Legislature and signed into law by the Governor in May 2017. This law aims to protect “critical infrastructure” from protesters.

Key Figures

Representative Scott Biggs, a Republican, introduced this legislation in the Oklahoma House of Representatives. Biggs received $13,751 in political donations from the oil and gas industry between January 2015 and March 2017, according to KFOR. He represents Oklahoma’s panhandle.

State Senator Bryce Marlatt, a Republican, introduced the legislation in the Oklahoma Senate. He represents District 27, also in the panhandle and extending into the northeast of the state. Marlatt currently works for Power Rig, an oil and gas drilling contractor, according to his LinkedIn profile.

Governor Mary Fallin, a Republican, signed the legislation into law.

Further Details

House Bill 1123 imposes intense repercussions on individuals and organizations participating in protests that take place on or damage infrastructure. The bill “specifies penalties of up to $100,000 in fines and 10 years in prison for individuals involved in actions against ‘critical infrastructure,’” the Tulsa World reports. Additionally, the Bill penalizes organizations “found to be a conspirator” with individuals trespassing on critical infrastructure facilities. These organizations could face fines of up to $1 million, according to the Tulsa World.

The bill defines 17 types of critical infrastructure, including “railroad tracks,” “a petroleum or alumina refinery,” and “a natural gas compressor station.” Protests in North Dakota concerning the Dakota Access Pipeline prompted Representative Biggs to author the legislation. He told fellow legislators that his bill was aimed at protecting infrastructure, not hindering the rights of peaceful protesters, reports KFOR. “Across the country, we have seen time and time again these protests have turned violent, these protests have disrupted the infrastructures in those other states,” he asserted on the House floor, according to the Oklahoma Gazette. He continued, “This is a preventative measure … to make sure that doesn’t happen here.”

House Bill 1123 drew intense criticism from groups concerned about its implications for First Amendment rights. Oklahoma’s chapter of the Sierra Club lobbied against the legislation. The chapter’s director, Johnson Bridgwater, told the Oklahoma Gazette that the bill “violates the fundamental principals [sic] that America was founded on.” Bridgwater believes that this law could “could create overlap between federal and state laws, as the U.S. Department of Homeland Security is responsible for protecting the nation’s power grid and other critical infrastructures,” according to the Oklahoma Gazette.

Doug Parr, city attorney for Oklahoma City, believes that the legislation was passed “to intimidate and threaten an organization that might organize a nonviolent, non-disruptive political protest,” KFOR reports. Oklahoma’s chapter of the American Civil Liberties Union has also criticized the law for its detrimental impact on First Amendment freedoms. Ryan Kiesel, the chapter’s executive director, told the Oklahoma Gazette that the First Amendment “protects the rights of Oklahomans and Americans to engage in speech and activity, knowing that if they engage in civil disobedience, that the penalties they face should not be disproportionate. If we chill and keep people home, away from the cameras and away from the public they are trying to wake up on any number of issues, we are doing a real disservice to our democracy.” Representatives from the Ponca Tribe told StateImpact that they believe this legislation was introduced as “a knee-jerk reaction to what went on in Standing Rock.” Standing Rock is a Native American reservation in North Dakota that hosted a months-long protest against the Dakota Access Pipeline.

House Bill 1123 was introduced in the Oklahoma State House of Representatives in February 2017, and was approved by that chamber on a vote of 78-25 in March, and in April by the Oklahoma State Senate on a vote of 38-6.


Governor Signed Legislation into Law

Governor Mary Fallin signed the legislation into law on May 3, 2017, without comment, rendering the law effective immediately.

External References:

HB 1123

Groups protest anti-protest bill, KFOR

Anti-protest bills could curb freedom of speech or provide protection in Oklahoma, Oklahoma Gazette

Oklahoma Bill to Protect ‘Critical Infrastructure’ Could Curb Public Protest, Critics Say, StateImpact

Bill stemming from pipeline protests passes Oklahoma House committee, Tulsa World

Report shows how much Oklahoma legislators received from the oil and gas industry, KFOR

Will Haskell ‘18

August 22, 2017