Two is Company; Three’s a Riot: Oklahoma Lawmakers Unleash a Barrage of Anti-Free Speech Bills in the 2021 Session
Note: The following post is a guest blog co-authored by Abby Henderson from the International Corporate Accountability Roundtable and Elly Page the International Center for Not-for-Profit Law, published here in partnership with Freedom of Information Oklahoma. In addition, we interviewed Elly on this week's episode of Let's Pod This, which you can listen to below.
As the nation battles a raging pandemic, copes with the deaths of hundreds of thousands of Americans, faces down millions of lost jobs, and reels from a rocky transition to a new administration, state lawmakers have chosen to spend their time proposing ways to punish people who speak out. Across the country, lawmakers have filed a flurry of bills to target participation in protests. The trend is most pronounced in Oklahoma, where lawmakers have introduced ten separate bills that would grossly limit people’s First Amendment right to assemble and be heard.
Like their sister bills proposed in other states, the bills use a number of tactics to discourage Oklahomans from speaking out on issues they care about. Many of the bills create draconian penalties for conduct that is typical of peaceful protests and demonstrations. For instance, a bill proposed by Rep. Tom Gann, HB 1561, would make it a felony to protest in a public street--historically a central location for demonstrators to be noticed and heard. Had HB 156 been the law in 2018, the hundreds of teachers who marched from Tulsa to Oklahoma City for education funding could have been charged with felonies and handed two-year prison sentences. A separate Rep. Gann proposal, HB 1565, would require public employees found guilty of “unlawful assembly” to be immediately fired and barred from future government employment. Those same teachers could have lost their jobs, under HB 1565, if their marches and rallies were deemed to have “disturbed the public peace.”
The bills also create new criminal offenses that are so vague, they violate the most basic constitutional requirement to give notice of what is unlawful. Oklahomans are entitled to know the legal boundaries that apply when exercising their First Amendment rights. A bill proposed by Rep. Rick West, HB 1578, prohibits causing “annoyance” through “tumultuous” behavior at a public establishment during a “riot.” When does a noisy march become too “annoying” or “tumultuous”? Rep. West’s prohibition would seem broad enough to cover even a raucous tailgate party, potentially rendering the whole of Stillwater and Norman a “riot” every Saturday from August to January.
A bill proposed by Rep. Kevin McDugle, HB 2215, meanwhile, would make it a felony to in any way “urge” someone to block a road with the intent to aid a “riot.” Could a Facebook post that says “Let’s take our message to the streets!” make one liable for a felony? The wrong answer could mean a 10-year prison sentence under Rep. McDugle’s proposal.
Several of this session’s bills go still further, and create new legal protection for drivers who injure or kill protesters. HB 1561, HB 2215, and HB 1674, introduced by Rep. Kevin West, would shield drivers from criminal prosecution or civil penalties if they “unintentionally” injure or kill someone while “fleeing from a riot.” Last summer, as Americans nationwide took to the streets to speak out against racial injustice, over 100 demonstrators were hit and injured by cars. One such incident took place in Tulsa, when a pickup drove through a crowd of peaceful protesters, injuring several and resulting in one, a father of five, being paralyzed. Bills establishing legal immunity for such actions threaten to encourage more violence against Oklahomans who are peacefully seeking to have their voices heard.
Such sweeping, punitive bills are unnecessary and dangerous. Oklahoma currently has extensive laws on the books to address crimes like damaging property or injuring people, giving police and prosecutors plenty of tools to address instances of unlawful behavior. Enacting this kind of legislation will not make Oklahomans safer, but it will erode Oklahomans’ treasured First Amendment rights and further exacerbate the State’s growing incarceration crisis.
Protests are essential to our democracy and central to our history. They have spurred political and social progress, from enfranchising women and people of color to advancing labor rights and environmental standards--all by ensuring that different voices are heard. Rather than seeking to silence these voices, effective leaders listen and seek to address the people’s concerns in a meaningful way. In this moment, when so many are struggling, Oklahoma lawmakers should focus on improving people’s lives, rather than creating unnecessary, draconian new laws that undermine our constitutional values.
Abby Henderson is an Advocacy Counsel at the International Corporate Accountability Roundtable (ICAR) in Washington, DC. She is a proud native Sapulpan and graduate of the University of Tulsa and the University of Oklahoma College of Law.
Elly Page is a Senior Legal Advisor with the International Center for Not-for-Profit Law (ICNL) in Washington, DC, and founder of ICNL’s US Protest Law Tracker.