Four states — North Dakota, South Dakota, Oklahoma, and Tennessee; have recently passed legislation restricting the rights of protesters, as part of a sweeping trend that has seen more than half the states consider implementing such restrictions. The laws range from increasing penalties for trespassing and rioting to even prohibiting protests in certain circumstances.
The new legislation not only penalizes citizens seeking to peacefully protest, but also threatens to interfere with journalists who cover and report on protests.
While the laws do “not call out journalists specifically… they apply with equal force to anyone present at a protest who accidentally steps off a sidewalk, or successfully criticizes a business practice. That includes journalists,” says Vera Eidelman, an attorney at the American Civil Liberties Union’s Speech, Privacy, and Technology Project.
Sanford J. Ungar, director of the Free Speech Project at Georgetown University, says, “There is a very real threat that reporters could be swept up in some of these draconian and bizarre laws. There’s no doubt that these laws are not only a menace to free speech, but also a menace to the free press.”
The Free Speech Project’s online tool, the Free Speech Tracker, monitors free speech issues at all levels of government, with a focus on state legislatures’ recent attempts to regulate protests. The Reporters Committee is part of a separate collaborative effort, the several journalists were charged with trespassing during the Standing Rock protests in North Dakota this year.
Even on public property, journalists do not have a special right that the public does not have. So if a protest march is designed to shut down a public highway, journalists risk arrest by entering the highway with those protesters. In the last month, at least 10 journalists were arrested in St. Louis during ongoing protests following the acquittal of a white police man who killed Anthony Lamar Smith, an African American man.
Some of the journalists were among the at least seven journalists charged under House Bill 1293, which not only increases the penalties and fines for trespassing, but also adds guidelines to existing law that increases the breadth of what qualifies as trespassing.
Previously, an individual could only be arrested for trespassing if he or she entered or remained in a place where notice against trespass is either verbally communicated by the owner or clearly posted.
However, HB 1293 makes an individual liable to trespass charges even when notice against trespass is not clearly communicated or posted, as long as a notice against trespass is “maximum penalty of thirty days in prison, a fine of 1,500 dollars, or both.
Additionally North Dakota’s maximum penalty of five years’ imprisonment, a fine of ten thousand dollars, or both.
South Dakota passed House Bill 1123, which passed in May of this year, criminalizes trespassing on “critical infrastructure.” Senate Bill 902, passed this April, criminalizes protests that obstruct emergency vehicles, with a penalty of a $200 fine. This law may legal hotline available for any journalist who may run into trouble while covering a protest.