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Who's Really Behind The Push To Make Protesting A Felony?

'You see over and over again that the legislators are willing to change the rules'

If it seems like more and more people are protesting lately — and that protest groups are getting younger — you’re not imagining things: Americans between the ages of 18 and 30 are more likely to have attended a protest since 2016 than any other demographic. So the news that protesting is becoming increasingly criminalized across the country is especially chilling for young people who want to make their voices heard.

As of this writing, a total of 100 protest-related bills have been considered by 35 states since November 2016, 16 of which have been enacted with another 26 pending. The harshest among them target environmental activists protesting “critical infrastructure” projects like pipelines, power plants, and water treatment sites.

Louisiana, for example, passed one of the severest penalties last August with HB 727, which now deems it a felony to be on a pipeline site at all, regardless of intent, punishable by up to five years in prison and/or a $1000 fine. (Doing so can circumnavigate the reality that a person’s right to protest is protected by the First Amendment.) The law, written by the Louisiana Mid-Continent Oil and Gas Association, is so vague that a new lawsuit argues landowners who own property with a pipeline running through it aren’t sure if they’re breaking the law.

Such legislation is a rising trend that Elly Page at the International Center for Not-for-Profit Law has been tracking ever since Donald Trump was elected president.

Page has noticed two types of protest suppression laws are being put forth more regularly by lawmakers. Some raise the stakes on peaceful, nondestructive activity by protestors who physically assemble in public and private places alike; other laws aim to create new criminal offenses for conduct that had not been penalized to such an extent, such as trespassing (which is often considered a misdemeanor). Both have a chilling effect on the public’s inclination to participate in one of the most accessible forms of political engagement.

“This is unprecedented. Over the past couple of years there has been a noticeable change in the kind of legislation being proposed,” she told MTV News. “The bills themselves and the way lawmakers talk about protest is contributing to a harmful narrative that protestors are criminals and are all unruly and destructive, undermining people’s belief in the importance of a First Amendment right to peaceful assembly.”

Cindy Spoon, a 28-year-old activist with the L’eau Est La Vie camp (“Water is Life” in French), was among the first people to be charged under Louisiana’s HB 727 law while protesting the Bayou Bridge Pipeline, which stretches for 163 miles in Louisiana and transports oil from the Dakota Access Pipeline to the Gold Coast refineries. The group had found a legal loophole in which activists stayed within their rights kayaking on a public waterway in the Atchafalaya Basin near the pipeline, successfully shutting down construction with their presence. As Spoon remembers, the company, Energy Transfer Partners, became frustrated with that workaround. The company declined to provide comment to MTV News.

“The next day, me and another person were in a kayak together near the site and right away we were arrested by private security,” she said, identifying the guards as off-duty officers from the Louisiana Department of Corrections, whose contract with the pipeline ended shortly after the incident. “They tied my hands and took us off our boats and dragged us and put us on the easement which is where the state police came.” (When reached for comment, the Department of Corrections said that their off-duty officers work independently of the department. MTV News was directed to both Energy Transfer Partners and the St. Martin Parish sheriff’s department for further comment.)

The Intercept notes that more than 12 people have been charged thus far; for her part, Spoon says she is currently facing up to five years in prison.

She plans to fight the charges, noting, “I think it’s important to highlight that what I was doing was legal in public waterways, doing a recreational activity.”

The Louisiana law that Spoon has been charged with is based on a critical infrastructure model bill drafted by the Koch Brothers-backed American Legislative Exchange Council (ALEC), a think tank that writes sample laws for conservative interests. Per the Texas Observer, Texas is about to sign a similar ALEC-inspired bill which would charge protestors with a $100,000 fine, a felony prison sentence of ten years, and up to $1 million for any organization that may have supported their presence on site.

According to Jennifer K. Falcon, the campaign manager for the Society of Native Nations, the passage of such a bill “would give us pause for sure.”

The Texas-based nonprofit is run by Native people advocating for the Earth and Indigenous culture; their work includes certain organizing actions. “We’re a small organization so the bill in Texas adding on a $1 million fine will definitely affect groups like ours who would be willing to support a camp,” Falcon added.

She noted that this recent insurgence of environmentally-targeted protest repression has roots preceding the 2016 election. From early 2016 to 2017, Energy Transfer Partners were made to navigate a massive protest from the Standing Rock action against its Dakota Access pipeline. (The DAPL traverses over 1,000 miles through multiple states starting from North and South Dakota, two states which have since enacted a high number of protest suppression laws.) The company engaged in a massive counter-protest effort that including hiring the private firm TigerSwan, known for its ex-military operators, to spy on protestors’ camps and work with militarized police forces. Violent clashes occurred as a result of the standoff between protestors and the pipeline interests; many people faced arrest, while one protestor was left blind in one eye.

This struggle between the interests of a wealthy corporation and the masses is not new, though the thematic targets have changed over generations. While today environmental activism is being singled out, the ruling class in decades past focused on labor unions, and before that the free speech of Communists, according to David S. Meyer, professor of sociology at the University of California Irvine and author of Politics of Protest: Social Movements in America.

“Whenever someone in power feels threatened by whatever cause is out there, they want to use the power of the state and police to crack down,” Meyer told MTV News. “Companies used to be able to count on the government to protect them and to pay for protection.” He points to Pinkerton, a private security firm that has been accused of beating up protestors and facilitating strike-breakers into workplaces, as a well-known example of private muscle-for-hire for the wealthy.

Many protestors often prepare for the worst before heading out into the streets, often by writing crucial phone numbers on their arms in the event of arrest, but they’re also able to hold police accountable by amplifying instances of excessive force. So instead of beating up the masses with impunity, the powers that be have begun to see protest suppression laws as an attractive and less-actionable tool of political militarization to advance private interests.

Accordingly, bills that raise the penalty for blocking traffic targeted at public demonstrations that take place in public spaces — often for social justice causes —  have become increasingly common and give enhanced power to law enforcement. Last year, West Virginia passed HB 4618, which eliminates police liability for deaths and requires bystanders to assist in the dispersal of crowds. If they refuse, they’ll be deemed a “rioter” and subject to “any means” necessary by the authorities to disperse unlawful assemblies.

According to Page, the International Center for Not-for-Profit Law believes that such laws “were proposed in response to the Black Lives Matter protests. In some cases it was explicitly clear that [the legislation] was in response to protest that took place in the streets.”

But activists aren’t about to take that inequity lying down. The strongest form of civic and political engagement available to people without other means has always been precarious, but they’re willing to take that risk in order to stand up for what they believe in. What they aren’t willing to do is allow the government to play with a handicap, just because those in power don’t like what the people have to say.

“I have organized legally through the system and through the channels that are available,” Spoon added, “but you see over and over again that the legislators are willing to change the rules.”