The right to protest is fundamental to what it means to be an American. Just take a look at history, and you’ll understand why. Significant social changes in this country – victories won in civil rights, labor rights, gender equality, LGBTQ+ liberation, disability justice, Black Lives Matter, and more – came to fruition thanks to mass collective action and formidable grassroots activism, often fueled by everyday Americans taking to the streets and banding together to protest injustice and demand something better.
Politicians make laws, but people make change. And time and time again, progress and protest have proven inseparable from each other – you can’t talk about one without talking about the other. Protest is one of the most powerful and effective tools that Americans have to express themselves and alter the course of history. For this very reason, some politicians are intent on undermining our right to participate in it.
In Wisconsin, the state legislature just passed Senate Bill 296, a piece of anti-protest legislation, through both chambers. Masquerading as legislation aiming to stop so-called “riots,” SB296 contains broad and ambiguous language that could criminalize various aspects of lawful assembly and threatens punishment of innocent protesters who are not involved in and may not even be aware of any illegal activity during a demonstration.
This bill imposes guilt by association by punishing a person who merely participates in a protest where another person engages in or threatens violence or property damage or “substantially obstructs” a governmental function. Any protester who attends such a so-called “riot” can be jailed and fined for a Class A misdemeanor, even if they do not know that other protesters may have engaged in violent or obstructive behavior.
Moreover, the bill’s contradictory and unclear language is so vague that protesters must guess whether a “riot” is occurring. Such vague laws impermissibly chill the constitutional rights of speech and association and leave too much to the discretion of police officers.
For example, a police officer could decide that a “riot” has occurred when at least one person threatens or commits an act of violence that substantially obstructs a governmental function. But the meaning of “ substantial obstruction” and “government function” are unclear and excessively broad. If one person blocks a city employee from entering the city hall's main entrance, does that mean the entire protest can be considered a riot?
When police are given the latitude to make indiscriminate mass arrests at protests, we have seen the problems that can arise. The ACLU of Wisconsin has represented two Milwaukee residents who, in 2016, were arrested in a police operation designed to suppress mourning and protest that occurred in the wake of the police killing of Syville Smith. One of our clients was merely observing the police presence and speaking with legislators across the street from where police had earlier dispersed the demonstration, and the other was swept up by a mobile police team breaking up groups in other parts of the neighborhood. Neither of them was engaging in any unlawful activity, but both were forcefully apprehended, handcuffed, and detained, experiences that were harmful and traumatizing.
If law enforcement is allowed to declare a protest a riot and empowered to more aggressively arrest people attending, observing, or merely in the vicinity of a demonstration, the rights of more and more Wisconsinites could be in jeopardy.
SB 296 is unconstitutional and poses a serious threat to civil liberties. Introduced following the nationwide uprisings against police violence and racial injustice, this bill seems aimed at preventing more mass mobilizations from happening in the future.
The good news is that this bill can only become law if the governor decides to sign it. That’s why we’re encouraging people to message Gov. Evers and urge him to veto the legislation when it comes across his desk. You can send your message here.
We also recommend that people get to know the rights they have as protesters. No matter the circumstances, it’s always important to understand your rights while protesting. You can review our Know Your Rights materials here, and you can learn about our legal observing program here.