The government can’t send you a bill for your free speech

Protesters march during the “Philly is Charlottesville” March and Rally on August 16, 2017 (credit: Ben Bowens)

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Imagine if Dr. Martin Luther King, Jr., future Congressman John Lewis, and their compatriots in the civil rights movement had been stuck paying the fiscal costs of Sheriff Bull Connor’s harassment, beatings, and arrests. Under a proposal before the Pennsylvania Senate, people who take to the streets to express their political views would have to do exactly that if they end up on the wrong side of the law.

On August 16th, four days after the white supremacist demonstrations in Charlottesville, Virginia, Senator Scott Martin (R-Lancaster) introduced a bill that could hold protesters liable for public safety costs associated with demonstrations. But despite the timing, Charlottesville wasn’t the primary trigger for this proposed legislation; the Dakota Access Pipeline protests were.

Under Senate Bill 754, courts could hold individuals convicted of protest-related misdemeanors or felonies liable for all public safety costs associated with demonstrations. This legislation is most certainly unconstitutional and would likely be struck down in federal court, but only after a costly legal fight.

While it may bother the primary sponsor and his friends in the energy industry that people of indigenous heritage opposed the pipeline, public protests and demonstrations are strictly protected by our First Amendment rights to free speech and assembly. The expression of those rights may sometimes incur costs, but those are collective public safety expenses which are collectively paid by us through our taxes.

SB 754 proposes two worrisome legal changes, both of which are certainly unconstitutional. First, it unreasonably expands the definition of liability. Individuals convicted of protest-related misdemeanor or felony offenses can be forced to pay for costs not directly resulting from their actions or even related to the crime of which they were convicted. Courts, of course, can already impose fines and restitution costs for expenses associated with a specific offense. But it would be unconstitutional to hold someone — even those convicted of protest-related offenses — liable for costs associated with other people’s actions or costs incurred to provide general public safety support at a demonstration.

Second, SB 754 selectively narrows the potential targets of this expanded liability. General public safety costs are recovered only from specific people engaged in a specific kind of activity, namely protesters exercising their constitutionally-protected rights to speech and assembly.

If this bill is enacted, it is doubtful it could withstand a constitutional challenge. In order to protect the First Amendment freedoms of speech and association, the Supreme Court has sharply limited the government’s authority to impose liability on organizations or their members for misconduct or criminal acts that occur during political demonstrations. Lower courts have similarly rejected attempts to hold demonstrators liable on the grounds that the government can recover their costs through existing civil and criminal sanctions against those directly responsible.

Furthermore, because municipalities generally do not impose responsibility for using public spaces on particular users, holding protesters liable would place an intolerable burden on their constitutional rights. In this context, the measures proposed in SB 754 are constitutionally suspect.

Equally alarming but no less important is the chilling effect this legislation would have on free speech and assembly. The prospect of being held liable for demonstration costs if, for example, you are convicted of obstructing a sidewalk (a misdemeanor offense), may well provide a strong disincentive to participate at all.

SB 754 is not the only bill targeting demonstrators. SB 652 was introduced by Senator Mike Regan (R-Cumberland and York) in April. It, too, was crafted in response to the Dakota Access Pipeline protests. SB 652 creates a new category of properties, comprised of eighteen different types of critical infrastructure facilities, and imposes severe penalties for criminal trespassing on those properties. In many cases, what are currently summary or misdemeanors offenses are enhanced to second and first degree felonies under this proposed legislation.

Even if neither bill is enacted, the measures they propose offer valuable insight into how our legislators perceive public protests and the worrisome ways they choose to respond.

Free speech is free. The government can’t send you an invoice.

Elizabeth Randol is the legislative director of the American Civil Liberties Union of Pennsylvania.