Republicans Want to Make Protesting a Crime

A spate of new laws crack down on social justice and environmental activism

By Jeremy Miller

May 25, 2021


Police arrest a water protector protesting the construction of the Line 3 oil pipeline in Minnesota last January. | Photo by Kerem Yucel/AFP/Getty Images

A half-year after Donald Trump’s drubbing at the polls, the right-wing effort to criminalize dissent and protest among environmental and social justice activists continues to gain momentum.

In early May, Montana governor Greg Gianforte signed into law a bill designed to protect “critical infrastructure,” including gas and oil pipelines. The law defines infrastructure broadly, from wireless towers to prisons. Individuals who trespass, or merely “impede or inhibit operations” at these sites could face as much as 18 months in prison and $4,500 fines. Under the new law, protesters who cause more than $1,500 in damage could be faced with a maximum of $150,000 in fines and 30 years in prison. Organizations found to be involved in coordinating with the protesters could be required to pay a maximum fine of $1.5 million.

The Montana law is one of a host of copycat bills that have been introduced in Republican-led states over the past several years. Critics say these “anti-protest” bills have little to do with protecting infrastructure but are thinly veiled crackdowns on lawful protests of controversial gas and oil pipeline projects, many of which are led by Indigenous groups, including those fighting the construction of Line 3 in Minnesota.

According to the International Center for Not-For-Profit Law, which tracks the rise of anti-protest bills, 15 states have passed bills criminalizing environmental protests since 2017. But many more states have tried to pass similar legislation. According to American Civil Liberties Union attorney Vera Eidelman, 90 anti-protest bills were introduced in 36 states in the past year alone. “What we are seeing this year with the huge wave of anti-protest bills is that it is consistent with, but frankly worse than, what we saw for the previous four years under Trump,” said Eidelman. “We’ve seen legislators responding to powerful and vocal and social movements, not by listening to what those protesters are saying but by proposing bills that seek to silence them.”

A law enacted in January in Arkansas, for example, makes trespassing onto a site with a pipeline punishable by up to six years in prison and $10,000 in fines. It resembles a law passed by the Indiana state legislature in 2019, which sentences anyone who enters property containing “critical infrastructure” without permission with up to a year and a half in jail. Many of the laws have upped the penalty for blocking access to construction sites—a main tactic of nonviolent protesters—from a misdemeanor to a felony. Several of the bills also redefine the broad coalitions of parties involved in the protests—from local groups to national conservation organizations—as “conspiracies,” which some believe could entangle national environmental organizations in expensive lawsuits for demonstrations that involve acts of civil disobedience.  

Protesters have already been ensnared by these draconian laws. In August 2018, activists from a group called L’eau Est La Vie (French for “water is life”) embarked on a creative protest against a pipeline being built through the bayou country of Louisiana. Using ropes and pulleys, the activists hoisted themselves into ancient cypress trees, onto wooden platforms perched 35 feet in the air. But the protesters ran afoul of HB727. Ratified the previous May, the law boosts the charge of “unauthorized entry of a critical infrastructure” from a misdemeanor to a felony and imposes strict penalties including “imprisonment with or without hard labor for up to five years.” 

“We were targeted,” said Anne White Hat, an Indigenous activist who was arrested at the site and charged with two felony counts of trespassing, which, collectively, carry a maximum sentence of 10 years. “The problem with these laws is that law enforcement can go after whoever they want.” White Hat said she and several other protesters were physically accosted by officers. One of her fellow activists was kicked; another, tased. Compounding the physical violence was the ambiguous role of law enforcement at the scene. “They had Louisiana state [parole and probation] officers who were moonlighting as private security for the pipeline company,” she said. “They were dressed in their police uniforms, and we could never be sure whether they were on duty or on the company payroll.”

According to a Greenpeace report titled Dollars vs. Democracy, many of the top donors to state legislators who sponsor these anti-protest and “critical infrastructure” bills were fossil fuel companies, including Koch Industries, Berkshire Hathaway, Duke Energy, Dominion Energy, and Marathon Petroleum. Connor Gibson, a former researcher with Greenpeace’s Investigations team, also found that law enforcement organizations were heavily involved in lobbying for anti-protest bills. Between 2019 and 2020, police and correctional unions contributed $342,602 to lawmakers sponsoring anti-protest bills introduced in the 2021 legislative session. 

The similarities in language are conspicuous and bear the fingerprints of the American Legislative Exchange Council, or ALEC, a think tank that drafts legislation on behalf of an array of conservative interests including multinational fossil fuel companies. The group’s Critical Infrastructure Protection Act, which has served as a template for numerous state bills, “draws inspiration from two laws enacted in 2017 in Oklahoma,” according to the ALEC website, elevating trespassing from a misdemeanor to a felony and imposing substantial fines and jail time.  

According to Gibson’s research, ALEC’s model critical infrastructure bill was written at the behest of oil companies and trade groups including the American Chemistry Council, the Edison Electric Institute, the American Fuel and Petrochemical Manufacturers, the American Gas Association, and Marathon Petroleum. “They all signed a letter to ALEC’s legislators and said, ‘please make a model bill out of this,’” Gibson told journalist Amy Westervelt in an interview in March. “And they listed a bunch of reasons justifying why a law was needed.” 

Critics say the laws are not only unduly harsh but run counter to the First Amendment. “The message they send to people is ‘you better think twice about protesting and expressing your views,’” said Eidelman of the ACLU, noting that these “riot-boosting” bills intentionally conflate peaceful protest with the occasional acts of violence and vandalism that arise from them. “These laws are not necessary to stop trespass or property destruction—those things are already illegal,” she added.

Efforts to silence opposition to pipelines and other oil and gas projects go beyond the riot-boosting and critical infrastructure bills, said Eidelman. “During this past legislative session, South Dakota passed a law aimed at preventing Native and environmental groups from appearing at water management board hearings to oppose water permit applications,” she said. “The bill’s proponents were explicit about the fact that they were doing this because the opposition to the Keystone XL pipeline was inconvenient and caused the hearings to last a lot longer than usual.” 

The criminalization of environmental, Indigenous-led protest has striking parallels with the crackdown on Black Lives Matter Movement demonstrations last year following the police killing of George Floyd in Minneapolis. In April, Florida governor Ron DeSantis signed into law what GOP leaders have touted as the most stringent “anti-riot” bill in the country. Among its many provisions, the bill gives legal immunity to drivers who plow through a crowd of protesters blocking a road, if they claim that the demonstrators caused them to fear for their safety.

Though the Florida law is extreme, other bills passed in recent years have greatly expanded the definition of what constitutes “illegal” protest. One Georgia bill, passed in 2018, imposes strict penalties on students including expulsion for speech that “infring[es] on the expressive rights of others”; another Arkansas bill has broadened the definition of an “act of terrorism” to include causing “substantial” damage to public monuments (even ones that depict slave-owning traitors).

“This isn’t a new phenomenon,” said Eidelman, noting that the civil rights movement was followed by the federal Anti-Riot Act. “Legislators and government actors have always tried to miscast protesters as rioters, or terrorists, or saboteurs. Rather than listen to the messages of their constituents, they try to clamp down. It’s something we’ve seen throughout American history—even with movements we now widely recognize as clearly just.”