Originally published on the Human Rights at Home Blog
By CUNY law student Chelsea Wilson Miller
Nineteen U.S. states have introduced bills since President Trump’s election victory that threaten the right to peaceful assembly. At least fifteen bills are deemed “anti-protest,” or downright unconstitutional by the ACLU. Fourteen states are considering these measures, either in Committee or on their State Legislature floor. Some states have even introduced more than one bill to limit or punish protestors.
The right to peaceful assembly is a fundamental constitutional right in the United States (U.S.), and there is no justification for imposing new laws restricting the right. In the event that the protest becomes violent and crimes are committed, law enforcement officers already have the ability to arrest the wrongdoer. Even before the anti-protest laws, state police have been overcharging protestors under existing trespass or obstruction laws.
Under international law, the right of peaceful assembly is protected by Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which was ratified by the U.S. in 1992. In 2010, the United Nations (U.N.) Human Rights Council created the position of Special Rapporteur on the rights to freedom of peaceful assembly and of association to monitor and report on threats to freedom of assembly throughout the world. In July 2016, U.N. Special Rapporteur Maina Kiai conducted an official mission to the U.S. and reported that America was “struggling to live up to its ideals.” He described rampant racism and exclusion, especially of African-Americans, and unequal economic wealth distribution following the 2007-08 financial crisis. These events, he found, gave way to increased demonstrations.
Special Rapporteur Kiai is due to present his final report on his U.S. visit to the Human Rights Council in June 2017. Even before the newly introduced anti-protest bills, the preliminarily statement issued at the end of his visit found that the U.S. does not conform with international human rights law. The Special Rapporteur emphasized that the human right to peaceful assembly “guarantees that people may conduct assemblies, and restrictions to this right – be it on their time, place or manner – need to meet the standards under international law.” Further, he cautioned that “[w]hen a right is subjected to a permit or authorization requirement, it becomes a privilege rather than a right.”
Unfortunately, many of the bills introduced restrict the right to assembly further than simple permit requirements. Iowa’s bill, for example, would unbelievably punish protestors who block traffic with up to five years in prison. And a proposed Tennessee law would immunize drivers for accidently hitting a protester on a roadway. One of Minnesota’s introduced bills would allow “governmental units” to sue protesters for policing costs related to unlawful assembly or public nuisance.
A multiple-law school clinic collaboration known as the Protest and Assembly Rights Project published a 2012 report in which they affirmed that “States have a duty under international law not to interfere with assembly and expression rights, and also a positive duty to protect the rights.” Additionally, international legal bodies, like the European Court of Human Rights, have affirmed that “assemblies and protests are protected in public places.” This protection is directly contradicted by several of the states’ bills, which aim to unreasonably punish protestors in public streets. Another major concern is that the anti-protest legislation will result in increased police power, further restricting the right to assembly. As the ACLU has wisely noted: “Legislators in states with robust protest activity should have one priority: listening to those voices (even if, and perhaps especially when, they disagree with them).” State legislators should not be seeking creative ways to instead silence their constituents. If passed, these bills would certainly limit protestors’ access to public spaces in violation of international human rights.
On March 21, 2017, Special Rapporteur Kiai testified before the Tom Lantos Human Rights Commission. He called on the U.S. “to set an example by promoting and protecting the fundamental rights of its citizens, and the people on its soil.” Among other actions, he encouraged the U.S. to embrace the power of freedom of peaceful assembly instead of allowing legal efforts to violate and undermine it. The Special Rapporteur warned the U.S. Congress that this is not a time for empty words, that the stakes are too high.
The Special Rapporteur will get another opportunity to comment on the right to freedom of assembly in the U.S. in his upcoming final report to the U.N. Human Rights Council and would be remiss to not include the proposed legislation that restrict protest rights. In an email to the US Human Rights Network, his staff indicated that they “have been following media accounts of developments around . . . the proposed anti-protest laws but would certainly welcome additional information.” Any relevant information can be sent to the Special Rapporteur’s staff at: firstname.lastname@example.org.
It’s vital that the Special Rapporteur condemn these anti-protest bills and put the U.S. on notice that the proposed laws impose impermissible burdens on assembly. As he said in March, the stakes are too high not to speak out. People can also build movement and power by speaking out against these bills. Like the Special Rapporteur recently said, “It is precisely because civil society can be so powerful, persuasive and persistent that governments are moving to restricting it. And it is precisely because civil society has been so successful in motivating change that those with power, including powerful business interests, are fighting back.” It’s time for the U.N. and the people of the U.S. to work together, to speak up and fight back against states’ impending human rights violations.