Silent encroachment

"I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." - James Madison, June 1778

 

Here is something on-going which has gotten not near enough attention even as people are kinda sorta aware of it in particular circumstances.

 

We are facing a new wave of bills and lawsuits designed to limit and repress First Amendment rights to free speech and public assembly.

 

People are aware, I expect, of moves to restrict (properly read as drive out of existence) campus protest against the genocide in Gaza and/or support of Palestinian rights. But that is not the intended end. Just like sports and bathroom bans are not the actual goal of the transphobes and transmisiacs but are just the "foot on the door," the "camel's nose," to much more far-reaching ends, so are these laws and regulations.

 

The Guardian offered a brief rundown a few weeks ago, declaring

[a]nti-protest bills that seek to expand criminal punishments for constitutionally protected peaceful protests ... have spiked since Trump’s inauguration.

Forty-one new anti-protest bills across 22 states have been introduced since the start of the year ... according to the International Center for Not-for-Profit Law (ICNL) tracker.

This year’s tally includes 32 bills across 16 states since Trump returned to the White House, with five federal bills targeting college students, anti-war protesters and climate activists with harsh prison sentences and hefty fines.

 For example, the Safe and Secure Transportation of American Energy act would make it a federal felony punishable by 20 years in prison to “disrupt” planned or operational gas pipelines – without defining what constitutes "disruption," meaning it even could be applied to a lawsuit challenging a pipeline's permit. Similar bills based on model legislation crafted by the American Legislative Exchange Council (ALEC) already have been enacted in 22 states.

 

Social movements, the Guardian notes, usually generate attempts at repression. Repressive anti-protest laws proliferated in the wake of the 2016 Standing Rock protests. Protests in the wake of the murder of George Floyd resulted in 52 such laws being introduced across 35 states. One federal bill then was the Unmasking Antifa Act, potentially criminalizing wearing a mask during a protest. This March, the virtually-identical Unmasking Hamas Act would make wearing a mask or other disguise while protesting in an “intimidating” or “oppressive” way punishable by 15 years in prison - while not defining either “oppressive” or “disguise.”

 

So understand: Protests about Gaza are not the cause; they are just the latest excuse. In the words of AJenna Leventoff, senior policy counsel at the ACLU,

“These state bills and Trump’s crackdown on protected political speech are intended to scare people away from protesting or, worse, criminalize the exercise of constitutional rights.” 

And there is Jay Saper, an organizer with Jewish Voice for Peace, who said

“Make no mistake, this is not about Jewish safety. This is about advancing an authoritarian agenda to clamp down on dissent.”

That is the goal.

 

And not just the legislatures and the executive, the courts get used as well. The latest attacks on protest also include expanding civil penalties and expanding causes for individual action - a means of allowing repressive suits to be filed by individuals rather than government agencies. Such suits, which can tie up activists in expensive and bankrupting litigation for years, often take the form of a SLAPP* (Strategic Lawsuit Against Public Participation), used by the fossil fuel industry, wealthy individuals, and politicians to silence critics and suppress protest movements. For example,

[i]n Minnesota, a new bill seeks to create civil and criminal liability for funders and supporters of protesters who peacefully demonstrate on pipeline or other utility property. In Ohio, legislators are considering whether participants of noisy or disruptive but non-violent protests – as well as people and organizations who support them – could face expensive lawsuits.`

Three other states – Alaska, Wisconsin, Illinois – are considering new or harsher civil penalties for protesters.

The good news here is that most of these bills fail to pass or never make it out of committee in the first place. The bad news is that any of them at all pass, especially when any one of them applied with hostile intent - which is the point of them - can do significant damage to our right to protest.

On Monday[, April 7,] in Washington DC, a non-violent climate protester was convicted on felony charges of conspiracy against the United States and property damage for putting washable finger paint on the protective case of the Little Dancer statue in the National Gallery. Timothy Martin, who faces up to five years in prison and a $250,000 fine on each count, will be sentenced in August.

Years in prison and a bankrupting fine for "conspiracy" and "damage" that wasn't even to the statue and could be cleared up with a wet cloth. Intimidation into utter silence. That what all this is about.

And don't you ever forget it.

 

*From April 5, 2013: A SLAPP is a lawsuit is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their opposition. That is, the suers don't really expect to win the suit. What they want to do is to drain their opponents either financially, emotionally, or better yet both, so the opponents are exhausted and just give up.

They were popular among corporations from the 70s to the 90s, particularly when they were leveled against individuals or "kitchen table" groups that were using regulatory proceedings and hearings to oppose some plan of some corporation. The price for dropping such suits - which were patently frivolous, as they often claimed that by criticizing the company's proposal you were by definition "defaming it" and "causing it to suffer financial loss" - the price for dropping the suits was usually dropping out of the regulatory process and letting the company's proposal proceed unopposed. These suits lost a lot of their luster when their targets who were in a position to fight them began to file what became known as SLAPP-backs, where the roles were switched and the corporation went from plaintiff to defendant.

 

For more on SLAPP-backs, go here.