As one controversial law, executive order, or policy position after another comes out of Congress or the White House, it is little surprise that we’ve seen an incredible amount of protests in the last few weeks. Protesting is a tradition as American as apple pie, from the Boston Tea Party from which the hard-right conservative party took their name to the Civil Rights Movement of the 50s, 60s, and 70s. The tradition has been carried forward, with protests abounding on both side of issues ranging from abortion to taxation to federal use of land.
In recent months, however, protesting has become a bit of a target for criticism–especially where protests occasionally result in violence or property damage. Compounding these criticisms has been the widely cited, and essentially unsupported, accusation of “paid protesters” making a living off their involvement in demonstrations.
Conservative politicians in Arizona have begun moving forward on legislation based on these accusations, a bill known as S.B. 1442. This is still a bill, not yet a law, so it isn’t taking effect just yet. However, it has made it past the House in Arizona and is moving forward to a primarily conservative State Senate. The bill is, frankly, incredibly questionable both in what it seeks to achieve and its constitutionality. With that in mind, let’s take a look at what this law does, why it seeks to do it, whether it has the potential to pass constitutional muster if passed, and the results of litigation over similar laws in the past.
The Law, What it Does, and Why They Say They Want It
S.B. 1442, as written, expands racketeering laws and the definition of rioting. While this sounds innocuous, the goal and effect of the law is to expand the power of police to arrest protesters and the ability to crack down on protests. For example, it allows police to arrest peaceful protesters if they believe the protest may eventually turn violent. It also provides the power to criminally prosecute, and seize the assets of, anybody who plans or is involved in a protest where property damage occurs–regardless of their immediate involvement in the actual damage. It does this by expanding racketeering laws, the same ones initially instituted to help target organized crime such as the Mafia by allowing the police to more easily target an entire criminal enterprise, to include rioting. It is worth noting that rioting itself is barely defined at all within the legislation, allowing an extremely broad approach to what exactly could constitute a riot.
Racketeering law, and the Racketeer Influenced and Corrupt Organization (RICO) Act specifically, are notable for being exceptions to a general rule that you are unlikely to be punished for the unpredictable criminal acts of a third party unless you have a fairly direct level of involvement in promoting the act itself. This makes sense, if the guy in front of you in line at the bank robs the place, you wouldn’t expect the police to arrest the whole line. However, S.B. 1442 takes these racketeering rules to a genuinely terrifying place. They give the police the power to preemptively make arrests just because a planned protest might turn violent. They can even arrest organizers who weren’t at the protest. Planning a protest could lead to losing your property as the police could seize assets under the law. The law would allow arrests where people not actually associated with a protest commit property damage in its vicinity.
While violence is not something we should necessarily congratulate, peaceful protest is one of the most poignant forms of political speech available to the public. Publically questioning the political status quo quite rightly receives the protection of the First Amendment–both through freedom of speech and freedom of assembly–the constitutional right to come together and express your ideas as a group. So one has to ask, what is the motivation behind such a sweeping law with such huge connotations when it comes to curtailing First Amendment rights of people on both sides of essentially any issue?
When asked, the politicians promoting the bill provided a couple of justifications for the law. The primary one has been that the existing laws are not enough to discourage violent protest. A particularly odd position given that all the elements of rioting–property damage, assault, etc–are already crimes allowing arrest and criminal punishment. However, the politicians behind S.B. 1442 have said that this isn’t enough. They say that it’s necessary to stop the potential for crime before it starts. However, when you are essentially targeting people based on future speech a law becomes a lot more questionable.
A secondary justification for this bill has been the idea of paid protesters, or as one politician behind the law has called them “professional agent-provocateurs.” To start with, as mentioned above, there is actually no evidence behind this oft repeated accusation. It certainly is a common enough talking point, but one with no actual factual support. There are certainly organizers behind many protests, as has been the case with most protests for a long time, but that doesn’t make a protest paid and in fact makes it notably less likely to be violent in nature. What’s more, the law itself is much more broad in scope then its creators perhaps intended. It could be applied to any protest, regardless of affiliation, stance, or belief–allowing police to arrest those peaceful protesters.
Similar Situations Have Already Reached the Supreme Court
Given the shaky ground S.B. 1442 is already based on, you’d think it would either be the first situation of its kind or at least learned from the mistakes of its predecessors. However, the Supreme has actually ruled on a case including similar attempts to broaden the application of racketeering laws in the case of Scheidler v. National Organization for Women. The case did not go well for the expansion of racketeering law, to the tune of an 8-1 decision.
The case, decided in 2002 in the end to a 17-year old case, the National Organization for Women against anti-abortion activists. The case sought to extend the provisions of the RICO Act to these anti-abortion protestors. They argued that such activity could be considered extortion and properly fell under racketeering law–a sort of nationwide conspiracy to shut down abortion clinics.
The Supreme Court did not agree. They said that these protesting activities did not fall within the realm of federal racketeering law as written. What’s more, Justice Ginsberg’s concurring opinion noted that the court was “rightfully reluctant” to expand the scope of racketeering law to include political protesting. She specifically noted that such a change had the danger of treating the sit-ins of the Civil Rights Movement as criminal.
Is S.B. 1442 Constitutional?
No, almost certainly not. I’m not going to beat around the bush here, the proposed rules actually fly in the face of the values of the Constitution. Where a law curtails the First Amendment rights of the public, as S.B. 1442 clearly does, it is held to the highest levels of scrutiny before it can be considered constitutional. Such a law must apply the minimum possible level of restriction to Constitutional rights in support of an absolutely crucial government interest. What’s more, courts are particularly suspicious on prior restraints on speech–attempts by the government to chill or prohibit speech before it occurs.
The content of the bill is of the sort most disfavored by courts determining if a law is constitutional. Instituting the threat of arrest for a peaceful protest prior to the protest even happening, allowing the police to seize your property based on this arrest–that is the definition of a government action chilling speech before it happens.
While preventing crime and protecting the public can be a crucial government interest, to call S.B. 1442 the least restrictive means to that end is outright laughable. There are already laws making all the elements of rioting a crime, those limit the value of this would be law and already act as deterrents to such behavior.
If S.B 1442 becomes law, something that is looking fairly likely given the composition of the Arizona State Senate, it will almost certainly not remain so for long. It is not only nearly certainly unconstitutional, it is even contrary to the previous stance of the Supreme Court of the United States. The idea of a law like this is outright un-American, the fact that it was introduced frankly disappoints me personally. If it is indeed passed, expect lawsuits challenging the constitutionality of the law–along with a likely injunction halting the effect of the law–to quickly follow.