BOB GARFIELD: This is On the Media. I’m Bob Garfield.
BROOKE GLADSTONE: And I'm Brooke Gladstone.
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Now we shift the focus from the courts to the streets. You may have noticed there have been a lot of protests lately. Take February 11th, for instance. Plans for a candlelight walk against the Muslim ban in DC, a resist Trump rally in San Francisco, Colorado stands with Planned Parenthood in Denver, defund Planned Parenthood rallies across the country, a smorgasbord of protests in New York City against Trump, mass incarceration and - fur. But some local and state governments have pushed back against such exuberant, ubiquitous political expression, which, of course, has been mounting for months.
FEMALE CORRESPONDENT: Protestors filled the streets of Milwaukee yesterday over Donald Trump’s victory in the presidential election.
FEMALE CORRESPONDENT: Protestors demonstrated at the state house in Raleigh Friday, as the outgoing Republican governor, Pat McCrory, signed the first of several measures limiting the powers of his soon-to-be predecessor – or successor, Democrat Roy Cooper.
FEMALE CORRESPONDENT: Standing Rock protests have been taking place all around the country, as advocates fight to keep the pipeline from being built on tribal lands in North Dakota.
BOB GARFIELD: The move to restrict speech in the street has come almost entirely from the political right, in the name of law and order. In North Dakota, legislators have proposed a law that would indemnify drivers who negligently hit protesters on the highway. In Washington State, they’ve proposed upping the charge for some forms of civil disobedience to a felony. All in all, at least 10 states have pushed forward legislation to increase the cost of exercising your First Amendment rights.
Lee Rowland is a senior staff attorney with the ACLU’s Speech, Privacy and Technology Project. Lee, welcome to OTM.
LEE ROWLAND: Thanks so much for having me.
BOB GARFIELD: Give me a rundown of some of the proposals, please.
LEE ROWLAND: Well, you've mentioned some of the proposals that have already rightly been met with national ridicule, including the bill in North Dakota that would literally excuse a driver of vehicular manslaughter, if the person they hit was a protester. We’re also seeing a, a somewhat ludicrous bill in North Carolina to ban heckling after the governor was apparently embarrassed leaving a dinner last year. And we’re seeing a number of states dramatically increase penalties for obstruction, which can be something as simple as showing up to a protest having every intention to obey the law and being jostled to the wrong side of a yellow line on the side of a road.
BOB GARFIELD: Are there ways that legislators can, in the name of public safety or anything else, actually curb lawful protest in a way that's not going to get them in First Amendment trouble?
LEE ROWLAND: As long as obstruction bills, that is the kind of bill that would make it illegal for you to stand in the middle of the highway, as long as those are actually tailored to public safety needs and they are enforced neutrally, those laws are generally constitutional. But that's not what we’re seeing with this wave of bills. Every single city and county in this country has an anti-obstruction ordinance. What these bills do is pile on draconian penalties, so, for example, making it a gross misdemeanor or a felony to have your foot on the wrong side of the highway median or seek to charge you all the cost of a law enforcement response if you're one member of a protest that results in a need for a law enforcement response. So these are not what the courts generally consider to be tailored to public safety needs or other government interests that are neutral, with regard to protests.
BOB GARFIELD: Now, you said they've been ridiculed, and they have, but that doesn't make them necessarily unpopular. There's a bunch of nods of approval that go with these legislative attempts, are there not?
LEE ROWLAND: Well, there’s no question that there are certainly legislators who find this [LAUGHS] to be a popular enough idea to see this kind of legislation spread like wildfire. But the good news is that once they are publicized, once people find out that legislators, at the beginning of the state legislative session, are making it a priority to penalize protest, there is pushback. Bills, so far, aren't making it through the legislative session, as we might see if they were bills likely to ultimately pass.
BOB GARFIELD: Is it my imagination or are all, I mean, all of these attempts to squelch First Amendment rights originating from the Republican Party state by state, jurisdiction by jurisdiction?
LEE ROWLAND: As far as I’m aware, every single one of the anti-protest bills that's been introduced this year has been introduced by a Republican legislator, and I think that's a shame, right? First Amendment rights should not be a party issue, right. One thing about the First Amendment is what's good for the goose is good for the gander. If Republican legislators think that they can introduce these bills and then only go after Black Lives Matter [LAUGHS] protests, they’ve got another thing coming.
The First Amendment, if it means anything, means that the government can't pick and choose winners in political battles.
I work at the national office now but for many years I worked at the ACLU of Nevada and, while I didn't see a wave of the anti-protest legislation like we’re seeing now, from time to time a bill would crop up that would increase penalties for obstruction or, you know, add the kind of draconian insurance or payback requirements that some of these bills we’re seeing now would do. And not a single one of those bills ever passed and one of the reasons was that as soon as these bills were introduced, also generally helmed by Republican legislators, the anti-abortion protesters would come to what they considered to be their Republican legislators and explained to them, this is going to make us a bunch of felons, those bills tended to die a quiet death.
BOB GARFIELD: Isn't it true that the First Amendment has become partisan, that it is perceived as the last refuge of a liberal scoundrel?
LEE ROWLAND: You know, I, I don't think I can agree with that. Even as you're asking me that question, I’m getting bombarded with questions about the free speech rights, for example, of Milo Yiannopoulos, who was, by protesters, hounded out of his right to speak at Berkeley last week.
BOB GARFIELD: This is the provocateur associated with the alt-right and a columnist for Breitbart.
LEE ROWLAND: That's right, and it's not the first time that Milo has been prevented [LAUGHS] from speaking because of a liberal outcry. From where I sit, it's not clear to me that anyone owns the First Amendment, and nor should they, right? It's a complicated civil liberty that tends to be loved only by nerds, like those of us at the [LAUGHS] ACLU, for the exact reason that it protects your leftist screed just as much as it protects your right-wing ideology.
I mean, the ACLU represented the Nazis’ right to march in Skokie in the 1970s, so we certainly understand that, indeed, it's perhaps most important to stand up for speech you vehemently disagree with, precisely because we don't want the First Amendment to turn into a popularity contest.
BOB GARFIELD: All right, Lee, thank you.
LEE ROWLAND: Thank you very much for having me.
BOB GARFIELD: Lee Roland is a staff attorney with the Speech, Privacy and Technology Project of the American Civil Liberties Union.