CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, May 20, 2022

Baylor on Anti-Protest Laws

Amber Baylor (Columbia Law School) has posted an abstract of Unexceptional Protest (UCLA Law Review, Vol. 70, No. 3, 2023 Forthcoming) on SSRN. Here is the abstract:
Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large-scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws, even in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as anti-protest expansions of public order legislation. The consequences of anti-protest legislation on highly surveilled communities are alarming.

While existing critiques of these laws emphasize the chilling effects on protestor speech, this analysis masks the threat of such legislation outside of mass protest. In actuality, the application of anti-protest legislation is not limited to “exceptional” circumstances, increasing everyday public order, criminal law regulation for Black, Latinx, and other targeted communities.

This Article examines the construction of mass protest law exceptionalism and advocates for using resistance frames to better understand the burdens and consequences borne by communities. The analysis incorporates text of recent mass anti-protest legislation, proponents’ arguments in media, and debate in legislative sessions. The framing exposes the lack of protest exceptionalism, surfaces the thin line between mass protest and everyday public order regulation in targeted communities, and demonstrates the high stakes of ignoring this blurred line when considering mass anti-protest criminal laws.

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