More restrictive demonstration and protest laws risk eroding fundamental democratic values

by Tess Brennan, Universal Rights Group NYC Democracy, Thematic human rights issues

Republican lawmakers in the United States have recently introduced new legislation at the state level regarding protests and demonstrations. The bills collectively place greater restrictions on individual protest rights and increase the penalties for those charged under such provisions. The majority of laws are currently pending, but send a dangerous message even if they do not pass. This movement indicates a shift in perception as to what constitutes an acceptable level of freedom of opinion and expression, freedom of assembly, and freedom of association. This worrying trend is prevalent in, but not exclusive to the US, as similar measures have been enacted in other liberal democracies. When leaders repress civil rights in response to movements they are uncomfortable with, it places the further erosion of foundational democratic values at risk. 

As of 21 April, G.O.P lawmakers in 34 states have introduced 81 anti-protest bills during the 2021 legislative session, more than twice as many proposals as in any other year. A vast majority of the legislation share common provisions, like expanding the definition of a ‘riot’, creating vague and ill-defined new crimes, or increasing penalties on already illegal conduct. Some expand the permissible levels of use of force by police officers, and others reduce the penalties for civilians who strike protestors with their cars. Bills in a number of states would also bar people from public employment, public benefits and public office.

A continuing trend

The recent push for more restrictive protest and demonstration laws in the US is not new. The movement began in early 2017 following the election of then President Donald Trump and was led exclusively by Republican lawmakers.

The bills attracted the attention of the United Nations, particularly the Office of the High-Commissioner of Human Rights. Special Rapporteurs David Kaye and Maina Kiai, on the promotion and protection of the right to freedom of opinion and expression and the rights to freedom of peaceful assembly and of association respectively, wrote a letter to US authorities in March 2017 expressing their concern over the proposed laws which they referred to as ‘alarming’ and ‘undemocratic’. They noted that the bills, ‘with their criminalization of assemblies, enhanced penalties and general stigmatization of protesters, are designed to discourage the exercise of… fundamental rights.’ The letter further highlighted the ‘chilling effect’ the bills would have on the most marginalized communities, who often rely on the right to assemble to ensure that their voices are being heard.

The Special Rapporteurs also expressed concern over the language in the bills, which refer to protests as ‘unlawful’ or ‘violent’. There can be no such thing in law as ‘violent protests’, the rapporteurs argue. There may be violent protesters, but those who are should be dealt with appropriately and individually as ‘one person’s decision to resort to violence does not strip other protestors of their right to freedom of peaceful assembly.’

Language is a concern in some of the 2021 bills as well. The anti-protest bill in Florida, signed into law by Republican Governor Ron DeSantis on 19 April, uses language that conflates the ‘right to peaceful protest with the rioting and looting’ that sometimes results from protests.

Just as in 2017, the bills introduced in 2021 are a response to nationwide social justice movements. The Black Lives Matter Movement surged last May after the killing of George Floyd by former police officer Derek Chauvin in Minneapolis, and lasted throughout the summer. This G.O.P-led effort to restrict protests and demonstrations represents a growing trend among lawmakers to silence rather than engage with the message of protesters. Republican lawmakers argue that Democrats are pro-crime and violence, while Republicans are the party of ‘law and order,’ despite continued evidence that the 2020 summer protests for example were peaceful, including in a new study by The Washington Post which found that 96 percent involved no property damage or police injuries. 

International law and human rights obligations

Freedom of opinion and expression, freedom of peaceful assembly and freedom of association are fundamental rights, not privileges to be determined state by state. Restrictions on these rights cannot be tightened or loosened in response to the subject matter of protests. Freedom of association is guaranteed primarily in the First Amendment to the US Constitution. Numerous provisions under international law also protect these rights. The right to freedom of peaceful assembly is guaranteed in article 21 of the International Covenant on Civil and Political Rights (ICCPR) and the right to freedom of opinion and expression in article 19. The right to protest is also reflected in article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to freedom of opinion and expression and the right to assemble are guaranteed under articles 19 and 20 respectively in the Universal Declaration of Human Rights (UDHR).

The UN has reaffirmed the importance of protecting these fundamental rights by establishing and extending the mandates for a special rapporteur on the rights to freedom of peaceful assembly and of association (resolution 15/21) and on the promotion and protection of freedom of opinion and expression (resolution 7/36). The most recent extensions came in 2019 and 2020.

At its forty-fourth session, 30 June – 17 July 2020, the Council adopted resolution 44/12 on freedom of opinion and expression. The resolution reaffirms that ‘the right to freedom of expression… is a human right guaranteed to all… [and] it constitutes one of the essential foundations of democratic societies and development.’ It further recognizes that ‘the effective exercise of the right to freedom of opinion and expression is an important indicator of the level of protection of other human rights and freedoms.’ Finally, the resolution highlights the importance of combating misinformation and disinformation, which pose serious risks to the exercise of these rights.

Resolution 44/20 on the promotion and protection of human rights in the context of peaceful protests similarly affirms that the right to peaceful protest and assembly is protected under international law. The resolution recognizes that ‘peaceful protests can make a positive contribution to the development, strengthening and effectiveness of democratic systems and to democratic processes, including elections and referendums.’ While certain contexts may necessitate restrictions on protests, like the COVID-19 pandemic, they must be ‘necessary, proportionate to the evaluated risk and applied in a non-discriminatory way.’

Protest rights at risk around the world

The worrying trend of increased restrictions on these fundamental rights is not exclusive to the US. In 2019, ‘mass movements demanding social, economic and climate justice swept the streets of Paris, London, Brussels and scores of other cities.’ Police forces in Paris responded with particularly harsh measures and French courts convicted more than 21,000 people in 2019 alone for offenses such as contempt of public officials and organization of a protest without complying with notification requirements.

In the UK, the recently tabled Police, Crime, Sentencing and Courts Bill gives police the power to impose severe restrictions on protests. Opponents of the bill argue that it threatens ‘fundamental freedoms that the British public hold dear […] and by giving the police the discretion to use these powers some of the time, it takes away our freedom all of the time.’

2020 was a particularly pivotal year for protest and demonstration rights as risks posed by the COVID-19 pandemic coincided with the global movement against social injustice. But the international reaction to suppress protests has been concerning, particularly as it is currently playing out in the US. Restrictions on protests and demonstrations not only threaten fundamental rights like freedom of opinion and expression and freedom of assembly, but also risk initiating a domino effect and the subsequent violation of other fundamental rights. Crackdowns on the right to protest, demonstrate or assemble are often followed by further repressions on free speech, access to information and, in the most severe cases, can lead to unlawful arrests. The Carter Center identified freedom of association, freedom of assembly and freedom of opinion and expression as three of 21 fundamental obligations and rights related to democracy and elections. Should leaders continue to repress these fundamental rights, they risk further eroding the institutions and values that uphold democratic governance.

A man holds up his fist while hundreds of demonstrators march to protest against police brutality and the death of George Floyd, on June 2, 2020 in Washington, DC. Win McNamee | Getty Images

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