Will states use the Capitol riot to crack down on pipeline protests?

Earlier this week, with national attention focused on accountability for the pro-Trump rioters who stormed the capitol building in Washington, D.C., Ohio quietly became the 13th state since 2017 to legislate harsher penalties for trespassing on or otherwise interfering with energy and industrial infrastructure — a move that activists and civil liberties groups say is a transparent attempt to criminalize nonviolent protest.

“The whole idea behind this is to chill protests at oil and gas industry sites,” said Reverend Joan Van Becelaere, the executive director of the Unitarian Universalist Justice of Ohio, a liberal, faith-based nonprofit focused on immigration, environmental, and economic justice. “It will really cause nonprofits, churches, and other groups that are concerned about climate justice to think twice about sponsoring any protest or demonstration.”

Ohio’s Republican governor, Mike DeWine, signed Senate Bill 33 on Monday, making trespassing on oil and gas sites a first-degree misdemeanor punishable with up to six months in prison and a $1,000 fine. (Criminal trespass in Ohio is already a fourth-degree misdemeanor punishable with up to a month in prison and $250 in fines.) The new legislation ups the penalty for trespassing on property with so-called critical infrastructure, a long list of facilities including pipelines, compressor stations, chemical plants, and telephone poles. It also makes “improperly tamper[ing]” with critical infrastructure a third-degree felony that could result in up to five years in prison. Organizations that support such activities could also face civil lawsuits and up to $100,000 in fines. (A spokesperson for DeWine did not respond to Grist’s questions about the governor’s support for the legislation.)

The bill was first introduced almost two years ago and passed the state senate in May 2019. For most of 2020, however, the state’s Republican lawmakers focused on blocking DeWine’s coronavirus-related public health orders and the fallout after key lawmakers were arrested for allegedly accepting bribes to bail out two nuclear plants, so the critical infrastructure bill languished in the legislature’s lower chamber. But during the last week of the legislative session in December, the bill found new life. It passed the state’s house of representatives and was sent to the governor’s desk on the last day of the session.

Environmental groups vigorously fought the bill throughout 2019 when they suspected that the proposal would be used to block protests against a large plastic plant planned along the Ohio River. But in 2020, in the midst of a global pandemic, construction of the plant was put on hold and advocates found it more difficult to lobby lawmakers due to social distancing measures, Van Beceleare said.

According to the International Center for Not-for-Profit Law, a nonprofit civil liberties group that has been tracking anti-protest legislation, 12 other states — including North Dakota, Texas, Louisiana, Oklahoma, and Iowa — already have similar legislation on the books. Most of these laws bear striking resemblance to model legislation proposed by the conservative nonprofit American Legislative Exchange Council, or ALEC, and have been sponsored by lawmakers with ties to the organization. The Ohio bill, for instance, was sponsored by Republican state senator Frank Hoagland, an ALEC member.

Civil liberties advocates have noted that large protest movements beget anti-protest legislation. Many of the critical infrastructure laws were passed in the months following the Dakota Access Pipeline protests in North Dakota in late 2016. The Black Lives Matter protests from this summer also served as inspiration for state legislators. And this week, just two days after eight protesters were arrested for blocking construction of a pipeline in Minnesota, one of the state’s Republican lawmakers introduced a bill that would make damaging a pipeline a felony. Now, First Amendment advocates worry that the riots in Washington, D.C. may serve as cover for new legislation that will primarily target peaceful protesters who bear little resemblance to last week’s rioters. Indeed, lawmakers in Mississippi, Indiana, and Florida introduced such proposals a day after the capitol siege last week.

“What happened last week has added a new challenge in the fight for protest rights,” said Nora Benavidez, the director of U.S. Free Expression Programs at PEN America, a nonprofit advocating for First Amendment rights. “We’re trying to make really clear to people that peaceful assembly and gathering together is one thing, but an insurrection with the intent to usurp government authority is completely different.”

The ideological affiliation of a given protest can have a profound effect on the way it’s handled by law enforcement. Research from the Armed Conflict Location & Event Data Project, a nonprofit that tracks protests and violence around the world, examined protest actions from May to December of last year and found that U.S. police were twice as likely to break up a left-wing protest compared to a right-wing one. They also found that police used force more frequently with left-wing protesters. Those differences were on display last week, when Trump-supporting rioters faced little resistance from police as they scaled walls and rushed cops in a bid to prevent federal lawmakers from certifying the 2020 election — a stark contrast to the swift law enforcement response that met Black Lives Matter protestors just a few months before.

Benavidez said that the Ohio legislation epitomizes a new generation of “kitchen sink” proposals by state legislators —so-called because these measures aggregate a variety of disparate provisions that could possibly be used to charge protesters, all in one bill. Senate Bill 33 both increases penalties for existing misdemeanors and creates new criminal sanctions. It also holds organizations liable for their members’ possible violation of the law, a provision Benevidez said was particularly concerning from a civil liberties perspective.

“Even, at the textual level, if [Senate Bill 33] somehow seems to be viewpoint-neutral, I am deeply concerned about the way it might be used with unbridled discretion to target certain groups, especially those that might be trying to educate, empower, or collaborate with groups challenging critical infrastructure development,” she said.

One such group may be the Unitarian Universalist Justice of Ohio, Van Beceleare’s nonprofit. If the church’s support of environmental ministry leads to large fines or lawsuits, her board of directors would be reluctant to support such work and would create “a big problem for all of us in the religious community,” she said.

“What little church or nonprofit has lawyers on hand to go in and fight a lawsuit?” she said. “That would be disastrous. That would bankrupt us.”

[Top image: Grist / Kryssia Campos / spooh / Jessica Rinaldi / The Boston Globe via Getty Images]