In Oklahoma, a law to bankrupt groups that organize political protests

http://earthfirstjournal.org/newswire/category/fossil-fuel-extraction/

Earth First! is not primarily focused on fossil fuel opposition. I guess I should have mentioned “Climate Direct Action” instead. But there is a fair amount of overlap in the many such groups. It is easy to get the agenda of the People’s Front of Judea mixed up with that of the Judean People’s Front.
I don’t hate protesters. I have protested, and still take the right to do so very seriously. The practices I oppose are not protest as such. I have to park my equipment out of sight of the public road. Not because someone would steal it, but because of “monkeywrenchers”, who would vandalize or burn it out of misguided good intentions.
If you are going to take action to protect or improve the environment, you should take actions that will actually result in environmental improvement. Sometimes, those effective actions are counterintuitive. But any action taken will likely have unforeseen consequences. I am not going to support any group that advocates actions that I believe are reasonably likely to result in environmental disaster. Even if those people are very sincere and have good intentions.

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As not-a-lawyer you shouldn’t be guaranteeing anyone anything. After a women’s topless protest against anti-toplessness laws, women were successful in their first amendment defense - their toplessness was an expression of their protest against the law. Something that would be illegal if it were not a protest can be legal because it is a protest.

Stop and think about what constitutional rights are there for. The entire point of their existence is to override laws. If they couldn’t take an illegal action and make it legal then they would have no power or meaning whatsoever.

Obviously people showed up in the thread to say, “This is not a first amendment issue,” and “The bill is being misinterpreted” and “These actions are illegal and we shouldn’t be defending them.” Just like they did for a woman laughing at Jeff Sessions.

This is a first amendment issue
Every law is a first amendment issue. If a law has the effect of preventing free speech, freedom of religion, or freedom to protest against government, it becomes a first amendment issue, even if it wasn’t intended to deal with that. That’s how constitutional rights work. I’m sure on these forums there are people with more knowledge of the American constitution than I have, but I feel absolutely no risk say this: If you can’t site a specific legal test for what it and isn’t protected expression and show how it applies, I’ve got no reason to believe you have any idea what you are talking about.

The situation is rarely being misinterpreted
Most of the time the person who shows up to say this has a theory of how we ought to read the bill that conforms to the Fox News/Breitbart theory and that runs against international news and fact checking sites. Usually in a thread about a terrible racist and their right to spout racist nonsense you’ll see people sticking up for the first amendment in the same way “gun nuts” stick up for the second amendment - interpreting every action as an attempt to chip away at it, thinking about all of the bad ways that anti-freedom-of-speech arguments might be used. But when it comes to the most specific provision of the first amendment - the right to political protest - the burden of proof seems to reverse itself. Instead of worrying about chipping away or insidious restrictions, the only thing that would qualify seems to be if a prohibition against protest were written in plain language right in a law.

We should defend these actions even if they are illegal
The entire point of freedom to protest is that it should extend to people who are doing things that are otherwise illegal. Imagine the government had a law against holding placards. We’d have people in here saying, “Look, if those protesters didn’t want to be arrested they shouldn’t have broken the law against holding placards - everyone knows that’s already illegal.” Constitutional rights are all about judging the law itself. Any idea that they are tested against what’s legal is a complete misunderstanding of the law. Constitution beats legislation. How that isn’t obvious is beyond me.

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But my point is that if something is legal when it is not a protest, combining it with a protest makes Constitutionally protected speech (or petition) into something illegal – in effect the violation is not the action but the protected speech.

That is something that has a very long history and none of it favorable to the laws in question.

I’m responding to your post here that articulates a kind of speech supremacy. I don’t know enough about the Oklahoma law to have an opinion on it. Speech rights coexist with other rights in the American system of ordered liberty. They do not cancel out other rights. Someone’s right to own a home or a downtown retail store and use them lawfully are not cancelled out just because someone is protesting. If I oppose private property and am protesting, I don’t get to burn down someone’s house or store and have that be legal. I can’t just declare something speech and suddenly laws don’t apply. “…the right of the people peaceably to assemble…” is protected. Protest is not a grant of royal privelege that gives someone rights to violate other peoples’ rights.

I’m not arguing for the supremacy of speech rights - if I were writing a constitution for a country right now I would not even include freedom of speech or expression in it. I’m pointing out the supremacy of the constitution over legislation because that’s a legal fact.

As I said:

There are tests in law that judges apply to determine whether something counts as protected expression. Violence and arson aren’t going to make the cut. But if someone is going to come and tell me that standing in front of construction equipment to prevent a pipeline from being built is not protected expression, I think they should be able to explain the legal principles that show that. If not, why wouldn’t I assume they are just pulling confirmation bias ala:

I’m just sick of arguments that say that the right to be paid to deliver hate speech is protected but the right to laugh at your government isn’t. They all follow similar lines. Free speech is inviolable when someone is saying something odious, but there’s always some kind of legalistic-sounding argument for what it doesn’t apply to actual protests.

But free speech vs. ownership of property is not a constitutional clash. There is no constitutional right to own property.

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I really think you have this one wrong. The placard example does not seem likely or sensible, so I will use another, more likely one. I mentioned my equipment on the ranch. That includes a bulldozer. There are plenty of people right now in my state who believe that disabling or burning bulldozers are a form of protest. If those people would ask me, I could tell them that we use this equipment to repair damage from erosion as part of our effort to restore the prairie and forest. But I won’t get a chance to explain that, and I should not have to. It is already illegal to trespass on my land and burn my bulldozer. Arguing that doing it because of “protest” should make it acceptable or legal is just not sensible.
Maybe another, better way to think of it would be to imagine what tactics you would find acceptable if used by people on the opposite side. This is very important to do, because that sort of change happens. But I can use an example from the present. Think about the nutty religious abortion protesters. They would like nothing better than have their protest rights extended to[quote=“anon50609448, post:54, topic:100509”]
doing things that are otherwise illegal
[/quote]
like “willfully damage, destroy, vandalize, deface, tamper with equipment, or impede or inhibit operations of the facility” , to borrow from the text of the Oklahoma law.
You have to assume that the tactics that can be legally used by activists that you agree with will also be used by activists that you oppose.

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No, I’m right. I don’t think I’m right. This is an objective fact that everyone ought to know.

The first amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is explicitly about preventing and overriding laws. The fact that constitutional rights trump legislation is just a plain fact. Go ask any lawyer: “Which takes precedence, the constitution, or legislation?”

Does that mean that someone can burn things down or kill people as a form of free expression? No. But the legal principles that determine that those things would never be classified as free speech aren’t written in legislation. Such a piece of legislation would be meaningless.

To say free speech doesn’t apply because something is illegal is just a complete misunderstanding of the law.

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Ok, so lets assume you are in Southern Colorado, and you want to protest my bulldozing, for whatever reason. Right now, it is parked about half a mile from the road, well inside a marked fence. What do you think your interpretation of the Bill of Rights lets you do?

The Bill of Rights doesn’t allow anyone to do anything (least of all me and other non-Americans), it prohibits the government from doing some things.

If you’d like me to list what it prohibits the government from doing, I’d be glad to:

  • making a law respecting an establishment of religion, or prohibiting the free exercise thereof;
  • making a law abridging the freedom of speech, or of the press;
  • making a law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

If you’d like to know how that applies to any particular set of problematic facts, you’d have to take it up with lawyers and courts. But the idea that part of the analysis would be whether the possibly-protected thing was illegal is just straight up wrong. You can check, again, with literally any lawyer on that. The very idea that legislation could overrule the constitution is nonsensical.

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Whoops!
I just keep dropping this everwhere I go…

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It means the state of Oklahoma cannot make a law with the explicit intent to increase the penalty for people damaging bulldozers in response to people wrongfully damaging bulldozers in protest in your area.

I asked what your interpretation of those rights allow you to do. But I can rephrase it. In the circumstances described, what do you believe are the limits of constitutionally protected protest, if any?

“Right of the people peaceably to assemble” includes the word peaceably, which is important. If you are engaging in activities that fall under the traditional definition of a “breach of the peace”, then it is not a “peacable assembly”. A breach of the peace can include criminal trespass or property damage. As I understand it, criminal trespass differs from simple trespass by either the intent to do harm, or trespassing after being warned not to do so,including written warnings, which follows the Oklahoma law about signs and walls.

And I answered you:

That’s the actual, factual answer to the question of what the first amendment allows you to do: nothing at all. It prohibits government from doing things, it doesn’t allow you to do anything. The presumption is that you are already, by right of just being a person, allowed to do whatever you want unless there is a law stating otherwise. Laws don’t allow people to take actions.

There’s a huge body of law we could study about how to apply first amendment rights. But I’m not advocating for some particular interpretation of first amendment rights. I’m pointing out that whether or not a thing is illegal cannot be part of the analysis of whether it is a protected right. In fact, since all the first amendment does is disallow the making of certain laws, I could go further and say that the first amendment doesn’t apply unless the protected thing is illegal. It’s the moment that the government makes or attempts to make a law restricting religion/expression/protest that the first amendment comes up.

I’m not sure what you expect. I can’t list the full range of possible human actions and put each into one box or the other, and I’m not well qualified to do so anyway. But the fact that constitution beats legislation every time isn’t my interpretation, it’s a solid fact. I don’t know what you think I mean by that, but all I mean is exactly what I’m saying. If you think I’m saying that someone can burn your bulldozer, you are wrong. Hell, they probably can’t even stand on the street in front of your property with signs since at some point that would constitute harassment.

If they were prevented from protesting you for owning a bulldozer then that would be because legislation said they couldn’t do that. If they attempted to challenge that legislation on constitutional grounds, the fact that it was illegal wouldn’t be relevant - that fact would be the thing that they were contesting.

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I can’t see why any thoughtful member of a democracy isn’t appalled at the very idea of this bill.

  1. There are already laws against destruction of property. To create a separate law that specifically refers to protest will suppress individuals’ willingness to peaceably protest, regardless of what it says or how it is applied. Fear of police is rising, and I don’t think anyone wants to be bankrupted or imprisoned.
  2. This is only one of several similar laws being considered in a number of states, so it’s not just an isolated event.
  3. Even if this law is not such a big deal in itself (a point I disagree with), it represents a further chipping away at our democracy. Not only point 2, but there are plenty of other bits and pieces of our democracy that have already disappeared: voting restrictions, government invasion of privacy, secret travel bans, weaponization of police, etc.
  4. Let’s not forget that the Boston Tea Party, so loved as a positive point in US history, was an act of destruction of a bunch of crates of tea.
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I guess the disconnect here is what constitutes legal protest. I agree that we are not given any rights, but that they are simply enumerated.
And certainly the belief has been expressed here that activities that would ordinarily be illegal become legal once those actions have been declared part of a protest.
I really think it is important to think of this in terms of the whether the activities you are advocating would be acceptable if committed by a group that you oppose. That is why I brought up the subject of abortion protesters. Most of us here support women’s bodily autonomy. I am sure there are exceptions. But the point is that they earnestly believe that their protest is a matter of life and death.

If you can block access to a coal fired power plant, then they can block people’s access to a clinic.

If it is acceptable for you to spray paint slogans on construction equipment, then they should be allowed to paint fetuses or bible verses on the clinic walls.

But we have established that so far, they cannot do these things. Even though they each have received a personal message from God that it is their mission to do so.

I would love to hear a reasoned argument as to why destruction of or tampering with equipment at an LNG terminal, a power plant, or a dam should ever be considered acceptable forms of protest.

Some activities do, that’s the point of the first amendment (or, alternatively, a law becomes void when it is demonstrated that it does restrict freedom of speech). Other activities do not because the first amendment doesn’t apply to them. It doesn’t make murder or arson legal. I could imagine trespassing laws running afoul of the first amendment in some cases, particularly if they were applied government land, or to land where private companies have been given licence to extract natural resources.

Ideally the analysis should be done objectively. The law treats all people equally (in theory) so it can’t matter who is doing it. It can matter what is being done, though, and often people make some pretty specious analogies between different forms of protest. Blocking entrance to a government building is not the same as blocking entrance to an energy plant is not the same as blocking entrance of a medical clinic.

In the first case removal might be in order but presumably people should tread carefully about arrests. In the second I’d say it depends a lot on the specific circumstance and why the protest is happening and whether the building is public or private (though I think the public has a certain interest in power plants even if they are technically run by private entities). In the third case I’d say that one person’s right to protest can’t interfere with another person’s right to medical treatment. That’s not because I favour one policy over the other, it’s because it’s obviously different to obstruct one thing than another and it has different impacts and conflicts (or doesn’t conflict) with other constitutional rights. Like how in my first example, I imagined there was such a thing as a generic government building - really there isn’t. If it’s an office building where corporate types work then I’d have a very different attitude than if it was a courthouse doing small claims - the former is disrupting non-necessary work, the latter interfering with people’s rights.

I can’t imagine they ever would, which is what makes a law against protesting in that way an awful law that targets protest groups in an unacceptable way. Tampering with power plants is almost certainly going to be pretty damn criminal to begin with. Adding on additional penalties because it was part of a protest is a flagrant violation of the first amendment. Their first amendment right is not going to protect them from charges related to dangerous vandalism of public infrastructure, but it should obviously protect them from a law that specifically targets the fact of the protest, and it should definitely protect other members of a group that they claim to be part of from being fined by association.

In the last election in Canada one party suggested they would start a “barbaric cultural practices” tip line to report things like honor killings. If there was an honor killing next door, I’d call the police to report murder, not a special racist tip line to go after people for being Muslim while murdering. When something is already a crime, we don’t need a law against protesting while doing it. Either the first amendment overrides the law against the thing or it doesn’t, but it definitely overrides the extra-punishment-because-it-was-a-protest law, which is what this law appears to be.

I have to agree in principle that the punishment for a crime should not be based on what a person was thinking when they committed the act. But in reality, we accept that hate crimes should be subject to more severe punishment than impersonal assaults.
In this case, it is not unreasonable to say that the purpose may be to differentiate between a person who vandalizes a building under construction by stealing copper wire out of the walls to buy drugs, from someone who is part of a group intent on vandalizing a power substation in a plan to bring down the power grid.
Really, if you read the law carefully, there is nothing in there that would prohibit legal protest. There is no mention of protest at all. Purely trespassing remains a misdemeanor, and even so the law is crafted to ensure that covered forms of trespassing are intentional, with the language about the facility being “completely enclosed” with barriers or signs.
It really comes down to the idea that many here believe that they should be able to shut down pipelines, power stations, and communication networks whenever they feel the political call to do so. Most people believe that activists should absolutely be prevented from doing those things.
Framing the argument as being about crushing political protest is disingenuous. It does make a more appealing argument than if you argued honestly that it restricts your ability to organize attacks on the power grid. Especially a power grid that could possibly disrupted without inconveniencing people in SF or Portland.
Using the art of google-fu, it appears that lawmakers in NY and CA are also calling for better protection of “critical infrastructure”, partly in response to the 2014 San Jose power substation attack.

Ha, right. You SAY you’re not on the side of the “pond- scum” corporate overlords, but when push comes to shove, it becomes clear which side you’re on.

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Welp, that’s completely wrong headed. For an example, consider 1st degree vs 2nd degree murder vs negligent homicide vs etc. In all cases someone has killed someone else, but the gears engaged within the justice machine are different.

Based - in part - on the defendants state of mind and intentions;

  • the charge can vary,
  • conviction is based on the evidence, and
  • the punishment is explicitly tailored