OKPOLICY.ORG
by Nicole McAfee, Director of Policy and Advocacy, ACLU of Oklahoma
In the days and weeks following the murder of George Floyd at the hands of police, Oklahomans gathered en masse to join a nationwide movement centered on systemic racism, police use of force, and the best strategies to keep communities safe. Calls to action varied, but the protests reflected an understanding that pouring hundreds of millions of dollars into policing, while not meeting the basic needs of overpoliced communities, was no longer acceptable. The conversations that drove these shifts were led by organizers from communities most targeted and impacted by policing, especially Black communities. In response, some policymakers listened and chose to reinvest dollars formerly allocated to policing into actual public safety mechanisms, such as community-based mental health and treatment services, working to limit interactions with law enforcement for people experiencing mental health crises; shelter opportunities for people currently unhoused; and investing in community centers.
Others took a decidedly different approach, a reactionary one. The Oklahoma Legislature was among the most vocal in choosing to pursue that strategy. The bills varied in levels of blatant unconstitutionality, but all 20+ different bills introduced at the Oklahoma Legislature this session shared the goal of chilling speech, criminalizing acts related to protests or accountability, and creating conditions that make people exercising their First Amendment rights less safe, especially when being critical of government actors. Throughout this session, these bills have been prioritized in both chambers, some moving on party lines, others advancing through committees unanimously. The reality is that these anti-protest bills will produce greater distrust between police and the communities they serve. These bills, several soon to become law, are an immoral response to last summer’s protests, and they pose real threats to the rights and liberties of Oklahomans.
These anti-protest bills don’t serve the interests of free speech, public safety, or law enforcement
Whether you approach these bills from a perspective of centering public safety, centering the safety of law enforcement, or Constitutional concerns about free speech and the right to protest, this legislation is bad. Trust between communities and those charged with protecting them is essential to public safety. The anti-protest bills that have advanced this session threaten that vital relationship.
As we reach the final weeks of session, four bills targeting protesters have been signed into law. House Bill 1674 (sometimes referred to as “a hit and kill bill”) shields drivers who hit protesters from civil or criminal liability if the protestors are deemed to be unlawfully obstructing public streets. This type of legislation was first seen in Tennessee in 2017, a year when a large wave of anti-protest bills were introduced in legislatures across the country in response to the protests at Standing Rock. HB 1643 targets efforts to film police and other public officials to hold them accountable, much like what we’ve seen after police have killed civilians in recent years. HB 2095 uses what are called RICO (Racketeer Influenced and Corrupt Organizations Act) statutes designed to target organized criminalized behavior to criminalize people engaged in planning, organizing, or attendance of activities deemed rioting, or remaining at the site of an event deemed a riot after being told to leave. We saw questionably quick curfews used to criminalize protesters in places like Oklahoma City this summer, in response to violence often escalated by police during protests. HB 2095 treats protesters as though they were engaged in Mafia groups instead of Americans begging for their government to listen to them.
SB 403 was signed with an emergency, and it extends the ability to criminalize the disruption of a public meeting to include public meetings beyond the state government level. While many claim this is necessary for decorum, we’ve already seen it selectively not used against people protesting mask mandates in schools. The key difference between these groups is the issue with all of this legislation and with policing. The group that saw harsher, quicker response in person and in media pushback was predominantly led by Black Oklahomans.
The bills have passed, so what now?
We know these bills have a lot of eyes on them, and even as they become law, what has not changed are your Constitutional rights. Oklahomans can still take photographs and video of things that are plainly visible in public spaces — and that includes police and other government officials carrying out their duties. Knowing your rights is always important, but especially as those in power are trying to quiet the voices of Oklahomans engaged in protest.
If enforcement is the issue, what can we do? If these bills chill speech or if they threaten protesters, can they be challenged? The answer isn’t as cut and dry as we’d like it to be. The bills as explained by the authors on the floor and as described in their intent, are unconstitutional. The language as actually drafted in the bills doesn’t do all of those things the authors say it does. That suggests the constitutionality of these bills lies in enforcement — in the hands of the very police who the communities targeted by these bills came out to protest.
Regardless of the intent of these bills, protest is a fundamental piece of our representative democracy. The First Amendment guarantees citizens the right to voice their concerns and hold all government actors, including police, accountable. And when it comes to the fine line of enforcement and protecting the rights and liberties of Oklahomans, organizations like the ACLU of Oklahoma stand ready to see anyone in court.
If you think these bills will not impact you and that you can sit this one out, I’d urge you to reconsider. The right to protest and to assemble is fundamental. Any time we make people second guess their safety if they’ll be criminalized for naming harms, we endanger our collective future. Protests are meant to be disruptive and to be inconvenient. Because it’s from a place of comfort and privilege that we begin to think we don’t need to act on the crisis that is murder at the hands of the police or that we don’t need to mourn with our community members who operate in constant fear that any interaction with law enforcement could result in their death. Many legislators believe the bills passed this year are just the start. The advocacy to disrupt the deluge of attacks on protesters must continue as we look to next year’s legislative session, and as we protect accountability and freedom of speech during municipal budget hearings, public meetings, and protests throughout this summer.
I suggest we sue the crap out of the State for trying to silence our voices.