With a new General Assembly elected, beware of bills assaulting the First Amendment
By John Ruch
With a newly elected Georgia General Assembly set to meet in January, it’s not too early to start warning it away from the kind of First Amendment assault we saw in last year’s session.
The protest-squashing “Safe Communities Act” (Senate Bill 171) – which would have required a government permit for many demonstrations and elevated certain minor crimes by participants to major felonies – is likely to return next session in some form, according to a recent presentation by the First Amendment Clinic at UGA’s School of Law. Sen. Randy Robertson, R-Catula, its lead sponsor, didn’t respond to a comment request.
The appetite for such legislation remains to be seen with new legislators and new leadership in House Speaker Jon Burns (R-Newington) and Lt. Gov.-elect Burt Jones, who happens to be an SB 171 co-sponsor. Kathy Brister, president of the Georgia First Amendment Foundation (GFAF), says it’s “impossible to predict” what will happen, but noted the stakes and outrage over the likes of SB 171.
“Georgians from across the state, from parents upset about school policies to social justice advocates, pushed back against the unconstitutional anti-protest bill that would have created a divisive and deeply flawed law,” Brister said. “A similar bill that passed in Florida [HB 1] has led to lawsuits and legal bills that have become a costly burden for taxpayers in that state.”
A Nov. 17 webinar by the First Amendment Clinic – a legal aid service conducted by law students – put SB 171 in the context of Georgia’s contributions to an unprecedented spate of anti-protest bills across the country that endanger freedoms of speech, press and assembly.
Student attorney Hanna Esserman noted the Georgia efforts go back to 2016 with the “Protect Act,” another unsuccessful bill that would have criminalized protests near ill-defined “critical infrastructure” as “domestic terrorism” punishable as a felony with “extreme” penalties.
Some other Georgia law changes have ended up OK, such as 2018’s SB 339 and related amendments by this year’s HB 1, which did away with the Orwellian “free speech zones” on public college campuses and required equal institutional support for speakers of any and all messages. But the process also involved battling a provision that would have suspended or expelled certain protesters of speakers.
Then there was SB 171, which passed the Senate this year but failed in the House. Esserman said it is “likely to be brought back” in some form next session. The bill’s permit requirement for demonstrations on public property “basically squashed any spontaneous protest that would have occurred,” she said. It turned such protest activity as blocking a street or defacing a monument into heavy-duty felonies, and an assembly into a potential criminal conspiracy that could be prosecuted as organized crime. And it created an affirmative defense for anyone who ran over protesters with a vehicle out of fear for their own safety.
Another student attorney, Aradhana Chandra, noted all these Georgia and national bills fall into a pattern where “it’s pretty clear that safety and order are not the government’s only motivating factor here.” They’re reactionary, right-wing responses to major progressive movements like Black Lives Matter and the Dakota pipeline opposition.
Indeed, they are often their own form of protest messaging. SB 171 was plainly aimed at defending Confederate monuments, chilling BLM and its (already illegal) highway-blockade tactics, and endorsing the far-right fantasies of running down such road-blocking protesters made real by a neo-Nazi terrorist at 2017’s infamous “Unite the Right” rally in Charlottesville, Va.
But in practice, unconstitutional actions against people in and near protests happen in cities with supposedly liberal governments, too, with arrests that often have the same element of counterprotest and chilling intent by the police. True blue Atlanta has a long history of such false arrests of protesters and journalists alike, as I and an 11 Alive photojournalist can personally attest from our BLM protest coverage several years ago – though, for reporters, charges are often dropped almost as quickly as they were manufactured.
During 2020 BLM protests in Atlanta, Mayor Keisha Lance Bottoms instituted a curfew that sparked several constitutionally dubious arrests. Those included apparent bystanders – or by-drivers, like the college students yanked from their car and Tasered in an infamously rough arrest that led to its own controversy over criminal charges imposed, then dropped, on the officers involved. Several journalists were arrested as well, including photographer Sharif Hassan in a particularly outrageous incident where officers also seized his camera’s memory card after he tried to document another arrest. Charges against him were dropped months later – in part due to the First Amendment Clinic’s help – but the City continues to battle, rather than settle, a lawsuit where he is asserting pretty obvious violations of his constitutional rights.
Protesters and journalists are hardly on any mainstream list of favorite people these days, but if you’re short on sympathy, understand that these arrests can happen to anyone – random bystanders, curious onlookers or residents attempting to document crimes in their neighborhood. Such folks were directly endangered in a recent City ordinance aimed at the hot-button issue of street racing.
Any law that targets protesters can and will be used against bystanders and journalists. And anyone with a phone and internet connection can be a journalist. Look no further than Darnella Frazier, the citizen whose crucial video of George Floyd’s murder is why many of these protests happened in the first place. That’s also why people doing such filming are so often arrested.
The stakes are even higher today in certain places and topics like Atlanta’s public safety training center, which attracts direct-action protesters, concerned neighbors, and journalists galore. Top police officials and private planners have spoken of such protests in terms conflating nonviolent and destructive forms, and of delegitimizing opposition as the work of outside “agitators.” This is not mere rhetoric when the FBI is investigating the protest movement with expansive federal anti-terrorism powers.
As the General Assembly session arrives in January, GFAF will have updates through its “Legislative Watch”
webpage on any bills implicating First Amendment rights.
“As we do every legislative session, the Georgia First Amendment Foundation will monitor bills in the upcoming session and engage with lawmakers to promote a free press and help protect and expand Georgians’ ability to attend government meetings, obtain government records and practice their free speech rights,” Brister said.
And of course, you might want to drop a line to your state and local elected officials – or even hold a protest, while you still can.