Block a highway? You could get slapped with a felony conviction, spend six years in prison and lose your right to vote.
Travel from out of state to participate in a demonstration? If law enforcement decides the demonstration fits the definition of a riot, you could do 60 days.
Commit the highly subjective act of intimidation or harassment during a protest that law enforcement labels a riot? That would now be a crime.
Critics, including Democratic lawmakers and civil liberties advocates, say that two Republican-backed bills working their way through the state legislature are designed to criminalize residents exercising their First Amendment right to peaceably assemble.
If adopted, HB0513, sponsored by Rep. Ron Gant, R-Rossville, and SB0451, from Sen. Mike Bell, R-Riceville, would saddle demonstrators with felony convictions, which would disenfranchise them.
“I think that the more they push these things through, the more people that they’re actually going to drive to the streets.”
Frank Johnson, activist
The proposed legislation follows a summer of racial justice protests, November’s record voter turnout that denied President Donald Trump a second term and a Democrat-controlled U.S Senate. Across the country, Republican-led legislatures are pushing hundreds of bills that would make it more difficult for voters to access the ballot.
“I believe there has been an effort to curtail protests,” particularly those against systemic racism, said Memphis Democrat Rep. Jesse Chism. “Not being able to vote, that’s one of the things that certain people are trying to use to keep those people, who are making these laws, in power.”
The bill by Gant, who is white, changes the penalty for blocking highways, streets, sidewalks, hallways and other public spaces from a misdemeanor to a Class E felony. The penalty for a Class E felony is one to six years in prison and a mandatory fine of up to $3,000. Gant’s bill also creates new criminal offenses connected to riots.
“If Tennessee is going to be targeted, this creates a deterrent that sends a strong message that we’re not going to tolerate this type of activity,” Gant said during committee discussion of the bill last month. He offered no evidence that the state is being targeted by protesters, much less rioters, and did not respond to multiple requests for comment.
The bill from Bell, who is also white, expands the definition of an aggravated riot to include people who came from outside the state with the intent to commit a crime, or people who participated in a riot for compensation. It also raises the mandatory minimum sentence from 45 to 60 days if someone meets the new criteria.
While the bill doesn’t reference protests specifically, it does mention riots, and some Democrats say they don’t trust law enforcement to know the difference. Although state law provides a legal definition of a riot, historically the standard for a riot is subjective and depends more on the color of the protesters than the actual activity, opponents argue.
Immunity for drivers
Gant’s bill and its senate companion have to clear other legislative hurdles before becoming law. But it does more than up penalties for blocking public spaces.
Part of the bill protects drivers from being criminally prosecuted if they unintentionally hit or kill someone blocking a passageway. Despite language that the driver must exercise “due care,” the bill would give cover to people who purposefully drive through a crowd because intent is hard to prove, argued Rep. Vincent Dixie, D-Nashville, during committee discussion.
“I think that’s how people are going to interpret this bill,” Dixie said. “That may not be your intent, but there will be actors that will come up and they will use this as a defense.”
Drivers have weaponized their cars against protesters before.
In 2018, a judge sentenced a white man to life in prison for killing a woman while driving through a crowd counter-protesting an August 2017 white supremacist rally in Charlottesville, Virginia. In the wake of attacks like that, Gant’s bill “devalues human life,” said Sen. Raumesh Akbari, a Memphis Democrat.
Akbari also referred to examples in Memphis during a march last summer in honor of Black people killed by white vigilantes, by police or who had died in police custody. At a demonstration in Midtown, one white driver was accused of trying to hit marchers with his car in Cooper-Young, while another white driver on a street nearby struck at least four people with his car.
“We already have our traffic and driving laws in place,” Akbari said. “I don’t think we need to provide this sort of blanket immunity for folks who hit someone with their vehicle while they’re demonstrating.”
A protesting double standard
The last part of Gant’s bill creates new criminal offenses associated with gatherings deemed riots. The offenses – intimidating or harassing someone during a riot and throwing an object at someone during a riot – would be class A misdemeanors. Throwing something that causes bodily injury would be a class E felony.
“This vague and troubling suppression of free speech can easily be abused, leading to the criminalization of protesters’ words and beliefs.”
Brandon Tucker, policy director for the ACLU of Tennessee
The intimidation offense could be misused to punish protesters for political speech, said Brandon Tucker, policy director for the ACLU of Tennessee.
“This vague and troubling suppression of free speech can easily be abused, leading to the criminalization of protesters’ words and beliefs,” Tucker said in a statement.
Bell’s bill could be used to prosecute national organizers who aid local protesters, Chism said.
“During the Civil Rights Movement of the ‘60s, people like Martin Luther King and Andrew Young and John Lewis, they went to other cities to help those organizers get their voice out,” Chism said.
Bills such as those proposed by Bell and Gant concern Chism, who says there is a double standard in whose protest is considered a riot in the eyes of law enforcement.
“There are so many peaceful protests that have happened through history that turned violent not by the protesters, but by those that were trying to discourage them from protesting in the first place,” said Chism, who is Black. “So we’ve got to be really, really careful about labeling a riot versus a protest. It could depend on a lot of factors on how one movement is viewed versus another.”
For example, Chism said, take the Jan. 6 insurrection attempt at the U.S. Capitol, which was led largely by white people.
“Is there even a problem we’re trying to cure? Or are we just trying to make it harder for people to exercise their constitutional rights to protest and to demonstrate?”
Sen. Raumesh Akbari, a Memphis Democrat
“Many people in our community looked at their protest saying, ‘Hey, if that was us, the outcomes would have been completely different,’” Chism said. “Those communities get the benefit of the doubt, while our communities are deemed as threats.”
Akbari isn’t convinced that rioting or violent protests, such as the one at the U.S. Capitol, is a real problem that needs fixing in Tennessee.
“Is there even a problem we’re trying to cure? Or are we just trying to make it harder for people to exercise their constitutional rights to protest and to demonstrate?” Akbari asked.
“I’ve seen the majority, if not all, of our protests, have been peaceful. There may have been some damage to property and I don’t even think that’s documented as being related to the protests, but more so people who are seeking to agitate the demonstration and the demonstrators,” Akbari said. “It’s truly not something that is a problem that needs to be corrected in Tennessee.”
If made into law, the bills would add to a growing list of restrictions on protesting in the state, including a 2017 law that imposed a $200 fine for blocking a highway.
The fine came in the aftermath of a July 2016 demonstration where over 1,000 people blocked Interstate 40 at the Hernando DeSoto Bridge in downtown Memphis for several hours in protest of police violence and other forms of systemic racism.
Derek Chauvin, a former Minneapolis police officer, is on trial for killing George Floyd in May 2020 by kneeling on his neck. As video of his death spread, protests broke out across the country including in Tennessee when demonstrators camped at the state Capitol for two months in protest of police brutality.
During its special session in August, the legislature responded by making it a felony to camp on state property through the night. Lawmakers also raised penalties for blocking a street or sidewalk and interfering with government meetings, including with loud protests.
The legislature also passed a law in 2019 that prohibits interfering with the construction of a pipeline. However, opposition to the controversial Byhalia Connection Pipeline that would run through several Black Memphis neighborhoods had not yet garnered national attention.
Activists undeterred
However, Chism expects Memphis activists to adapt to the changes if the bills are successful.
“When the bridge was shut down in Memphis, that actually got people’s attention but now we’re passing bills to make it illegal for people to protest,” Chism said. “The purpose of these kinds of bills is to discourage people from protesting at all. But we are people who are creative, we are people who are resilient, so I’m sure we’ll find other ways to protest while we look at trying to undo some of these bad laws.”
Memphis activists agree; the bills won’t be enough to keep them quiet.
“They can try to push through whatever they want. It’s not going to stop us,” said Hunter Demster, a Memphis activist. “We’ll come up with new tactics and then we’ll keep moving forward. But it says a lot about these legislators’ motives — it says a lot about their character.”
The bills may succeed but it’s too late to stop the people’s momentum, said activist Frank Johnson, even if it means they’re arrested and charged.
“This is their attitude — to suppress any Black and brown community in the state; to try and squash any attempt to make them transparent and hold them accountable — it’s nothing new, Johnson said. “I think that the more they push these things through, the more people that they’re actually going to drive to the streets.”
Carrington J. Tatum is a corps member with Report for America, a national service program that places journalists in local newsrooms. Email him at carrington.tatum@mlk50.com
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