Lawmakers in Arizona and Utah have introduced bills toughening penalties for civil terrorism—illegal activities undertaken to achieve political goals through intimidation or coercion. Blocking a road, for example, is already illegal, and for good reason: people have to get to their families and jobs, not to mention the needs of emergency vehicles. But Arizona’s HB 2136 and Utah’s HB 331 raise the costs of doing so intentionally in large groups or in especially disorderly ways, because current law treats road-blocking as a minor crime, and troublemakers have been exploiting it.
It’s about time states took the lead in cracking down on this behavior, but some critics don’t like it. Opposing the Arizona bill in committee, an ACLU of Arizona representative called it “another attempt to criminalize speech, protest, and activism.” She added that “disruption in civil acts of defiance [is] often inherent to protest,” citing the civil rights movement’s use of similar tactics. In Utah, a Salt Lake Tribune editorial characterized the local bill as “designed to make it easier to criminalize public protests . . . and evict them from the public square.”
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These criticisms make no sense because the actions in question are already illegal. The First Amendment has never protected blocking traffic without a permit—as civil rights marchers who were willing to pay the price understood well. Indeed, just two weeks before the local ACLU’s representative alleged that the bill criminalized protest, the Arizona ACLU published a “know your rights” page on its website instructing readers not to “obstruct car or pedestrian traffic.” That was good advice.
Nothing new is being criminalized. There is a spectrum of protest, ranging from minimally disruptive—one person venturing onto a highway—to maximally disruptive, as in dozens of demonstrators refusing to disperse, sometimes while brandishing paraphernalia indicating support for designated foreign terrorist organizations. Updating the law to reflect this reality has no bearing on lawful protest.
Critics are also hung up on the word “terrorism.” The ACLU representative in Arizona discerned “a larger attempt . . . to label everyday Americans as terrorists for expressing political views critical of the Trump administration.” She decried the way the Arizona bill “would deem [protesters] terrorists.” The Salt Lake Tribune denounced the legislature’s effort to “designate those who participate in [public protests] as terrorists.”
Not so. Terrorism has a specific legal definition: “violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State” that “appear to be intended to intimidate or coerce a civilian population” or “influence the policy of a government by intimidation or coercion.” Civil terrorism, in the Arizona bill, aptly refers to “unlawful act[s]” committed “with the intent to coerce or intimidate a civilian population.”
The bills don’t “designate” anyone. They don’t authorize states to make lists of people detained for or convicted of civil terrorism. They don’t create sanctions regimes forbidding Americans from materially supporting disruptive demonstrators. Civil terrorism simply refers to the illegal acts, which use the logic and tactics of terrorism without the degree of violence generally associated with the term. Panicking over the word “terrorism” is just a knee-jerk reaction to accurate legal language.
The strangest recurring theme in opposition to these bills involves an ICE complaint: If ICE can wear masks and engage in questionable actions, critics ask, why can’t regular citizens? The Utah bill “makes it illegal for those protesting to conceal their identities,” reported the Salt Lake Tribune. “You know, by wearing masks. Like ICE agents often do. . . . The ban on protesters wearing masks is an appalling double standard in a state that allows invading federal agents to hide their identities.”
This is a non sequitur. Pursuant to the Constitution’s Supremacy Clause, state lawmakers have no power to regulate federal law enforcement. Of course, there’s a “double standard” between state-citizen interactions and those of states and federal agencies—they are completely different relationships.
What the bill’s opponents are admitting by implication here is that they recognize that certain tactics not protected by the First Amendment—such as hiding your identity—can foster misconduct and disorder. Their argument, in effect, is that these new bills are under-inclusive; a more thorough measure would regulate ICE as well as the citizen demonstrators. But state regulation of ICE is out of the question, so the opponents have succeeded only in accidentally making the bill’s arguments for it.
Utah’s bill passed the state house without a single vote against, garnering bipartisan support despite misleading media coverage and dissembling arguments that conflate protest with lawlessness. Let it serve as a model for Arizona (where the legislature is still debating the measure) and states around the country looking to protect public order and safeguard genuine freedom of speech.
Photo by KEREM YUCEL/AFP via Getty Images