Crackdown in the States

Lawmakers around the country are attempting to stifle protest movements. They're the real threats to free speech.

A police line in San Francisco in 2008. Thomas Hawke / Flickr

On January 20, 2017, as Donald Trump assumed the presidency after his surprise victory months before, many were anxious about what lay ahead. Throughout his campaign the reality TV star turned presidential contender had repeatedly shown his deep-seated authoritarian tendencies.

Before, during, and after Trump was sworn in, on the streets of Washington DC, authoritarianism was on full display. The Metropolitan Police Department (MPD) deployed flash grenades, tear gas, and “stingers” against protesters. Early in the day the MPD engaged in kettling, an intimidation tactic in which police pen in everyone in a given area and arrest them en masse. The kettling resulted in the arrest of over two hundred protesters, journalists, and legal observers.

Mass arrests of protesters (and inevitably, bystanders) are not new for the MPD, but this was the first time police had deployed the tactic since at least 2005. High-profile mass arrests of World Bank and antiwar protesters in DC had sparked a public backlash, and the city ultimately paid out millions of dollars to those arrested. Fed up with the police’s antics, the DC city council passed legislation meant to protect the right to protest and curb police power.

The Inauguration Day crackdown, however, was not just a callback to an earlier era. In the end, 214 people were charged with felonies, something that lawyers in the city say is unprecedented.

The charges are connected to property damage and the alleged injuring of a police officer. However, police, prosecutors, and protesters agree that all 214 of those charged did not directly engage in these acts. One individual subsequently charged was not even present at the protest, but simply involved in the planning.

Prosecutors are engaging in guilt-by-association logic, arguing that the mere presence at a march, that joining in common activist chants, makes one guilty of offenses like felony rioting, inciting or urging to riot, and conspiracy to riot. With multiple felony charges, some of the protesters are facing up to seventy-five years in prison.

Such a blatant assault on democratic rights could be seen as the opening push in a new wave of authoritarianism — the first salvo in Trump’s war against protest movements. But while Trump’s presence in the White House sends a powerfully repressive signal to all levels of government and society, he’s just as much the product of authoritarian tendencies as their promulgator.

The Bipartisan Crackdown

The J20 mass arrests and prosecutions dovetail with a surge in Republican-sponsored legislation aimed at squelching street protests. At least nineteen such bills have been proposed in state legislatures across the country this year. Many would either increase the criminal penalties for acts associated with protests or attempt to hold other protesters or organizers liable for these acts. This is exactly what the J20 prosecutions seek to accomplish.

The Minnesota State Legislature, for example, considered a bill during its session that would have allowed cities to sue participants in “unlawful assemblies” for police costs. While the legislation failed to pass, lawmakers did approve a measure increasing the penalties for blocking traffic.

In Washington State, one Republican senator introduced legislation that would’ve allowed the state to charge protesters who impede traffic with “economic terrorism,” a felony offense. Arizona lawmakers debated a bill that would have permitted prosecutors to slap protesters with a racketeering charge, holding organizers responsible for unaffiliated individuals that commit crimes at protests.

North Dakota was perhaps the most appalling of them all. Republican lawmakers there proposed removing drivers’ liability if they “unintentionally” run over protesters with their automobiles.

This spate of legislation, commonly dubbed the “anti-protest bills,” is the product of Republican legislatures. But their Democratic counterparts have also been busy trying to stifle free speech.

While much of the media has treated it as a separate and unrelated phenomena, since 2014 state legislatures have debated a slew of bills aimed at attacking the Boycott, Divestment, and Sanctions movement, which seeks to use nonviolent protest to end Israel’s violation of Palestinian human rights. These bills have been bipartisan in nature, but in Democratic-heavy state legislatures, such as Maryland, New York, and California, Democrats have been behind them.

This trend is not just limited to the state level. Congress has considered a number of anti-BDS measures, including, most recently, the Israel Anti-Boycott Act. True to the bipartisan tradition, it has both Republican and Democratic co-sponsors. Its Senate version was initiated by Rob Portman, a Republican, and Ben Cardin, a Democrat. Both Senators have been serial opponents of BDS.

No picture of the landscape of anti-protest legislation is complete without including the anti-BDS bills. Just as their analogs are designed to chill speech by targeting various aspects of street protests or physical assemblies, these bills go after the means of protesting — in this case, boycotts.

Generally, the anti-BDS bills would create a blacklist of individuals or entities boycotting Israel or its illegal settlements (innocuously referred to as “Israeli-controlled territory”). Those on the blacklist would be denied a public benefit, usually state contracts. In a handful of cases, the bills would leverage state funding prohibitions to penalize academic associations or student groups.

Boycotts, like marches or pickets, are a classic protest tactic. From the US civil rights movement to the South African anti-apartheid movement to the Chilean anti-junta movement, boycotts have been an invaluable tool to challenge unjust structures and build solidarity across borders. To penalize someone for participating in a boycott is to deprive them of their fundamental right to protest.

And anti-boycott legislation aims to silence more than just the bills’ direct targets. As a number of civil society groups — churches, trade unions, academic associations — debate and consider BDS resolutions, the drive for anti-BDS measures will undoubtedly weigh on these discussions. Similarly, if someone fears they could be held civilly or criminally liable for the acts of a stranger who engages in property damage, they might avoid protests altogether.

The Roots of the Crackdown

None of these bills are emerging in a vacuum. In the case of the anti-boycott bills, their proponents make clear that their target is Palestinian solidarity activists. Anti–street protest measures are often direct attempts to undercut successful social movements.

Minnesota’s anti-protest bill came on the heels of major demonstrations against the police murder of Philando Castile. North Dakota’s anti-protest bill was introduced amid mass resistance to the Dakota Access Pipeline. Michigan’s proposed anti-picket laws target the burgeoning Fight for 15 campaign. Many of the remaining anti-protest bills clearly wish to trim the sails of Black Lives Matter.

In the US in particular, social movement repression is the norm, not the exception. Whether it is BDS or Black Lives Matter, any hint that movements are in ascendency means the crackdown is not far behind. But some causes and groups attract special scrutiny.

Protests led by people of color, asserting their rights, are likely to be met with militarized police that resemble an occupying army. Black Lives Matter, Palestinian solidarity activists, and Standing Rock water protectors have all struggled against racism and seen the “right hand of the state” unleashed in response. In the case of Standing Rock and Palestine, activists have also incensed the state by challenging settler colonialism head on.

Threatening capitalist profitability is another sure way to bring down the hammer of the state. Of course, traditional struggles between labor and capital are by their very nature disruptive to business. But Black Lives Matter protests have also been effective in part because halting traffic and blocking major thoroughfares disrupts business as usual. And by directly impeding the construction of a pipeline, Standing Rock water protectors became an impediment for a very powerful corporation.

With bills targeting Palestinian solidarity activism, an ideological commitment to Israeli apartheid is the primary motivating factor. However, in some cases perverse economic arguments have found their way into proponents’ arsenal.

In Maryland, backers of the anti-BDS bills have frequently cited as a rationale the state’s support for the Maryland/Israel Development Center. Promotional materials on the Maryland/Israel Development Center’s website boast of the presence of defense contractors like Lockheed Martin, Northrop Grumman, General Dynamics, and Booz Allen Hamilton in the state.

Lockheed Martin is a partner and sponsor of the Maryland/Israel Development Center. According to the Maryland/Israel Development Center, the Bethesda-based contractor “is proud of its decades-long role in supporting the State of Israel and Israeli Defense Forces. The company’s C-130 and F-16 aircraft have been part of the Israel Air Force since the 1970s and 1980s, and Israel recently celebrated the arrival of its fifth generation F-35 Adir fighter aircraft.”

Given the grip that the military industrial complex has on US politicians, it’s not surprising that Maryland state legislators are willing to deprive their constituents of basic democratic rights in order to ensure that locally based war profiteers can continue to benefit from the colonial occupation of Palestine.

Political Repression Is Political

Ironically, at the same time that this attempted criminalization of dissent is unfolding, there is a national discussion about freedom of speech that largely obscures it from the picture.

For those attempting to prove that right-wing speech is somehow uniquely endangered or that heterosexual white men are collectively under siege, it is easy to see why these inconvenient facts are ignored.

Yet liberals also suffer from a blinkered understanding of the root causes of threats to free speech. Liberalism assumes that the suppression of speech stems from a natural and immutable tendency of those in power to wantonly abuse their authority. Or it attempts to locate attacks on free speech in a desire to stamp out unpopular ideas or ideas that individuals happen to personally disagree with.

But explaining blunt repression in terms of popularity or disagreement is entirely misguided. Political repression is ultimately political. Power structures are organized in order to maintain their power.

A white supremacist society views a movement advocating racial justice as a threat, because if successful such a movement would dismantle the racist hierarchies and structures of oppression that characterize that society. An economic order that values the drive for private wealth above all else will certainly have no qualms about shredding democratic rights should they be used to threaten private wealth. And an economy in which war profiteering is still one of its chief pillars will view a movement that aims to disarm a colonialist project as an existential danger.

Movements that aim to upend the prevailing social, economic, and political order are, in fact, dangerous from the perspective of that order.

It is for this reason that, traditionally, socialist and anticapitalist movements have borne the brunt of state repression. And it is for this reason that these movements, in their struggle for their very own survival, have fought to defend and expand democratic rights — rights that impact people well beyond the Left. While the Right and liberals ignore this fact, many on the Left have unfortunately forgotten it as well.

There are many in power who do not want the Black Lives Matter or Palestinian solidarity movements to gain momentum. They do not want to see fast food workers win higher wages or the Standing Rock Sioux block pipeline construction. So of course they also do not want the idea that resistance works to spread. They perceive these movements as having been too successful, and they’re turning to the repressive apparatuses of the state for recourse.

Any serious attempt to counter the current crackdown on dissent must understand its roots to be successful. And those roots go much deeper than Donald Trump.