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.
How to Track Legislation
Today is a big day for the 58th Oklahoma legislature - it’s the annual Bill Filing Deadline, which means that all bills must be pre-filed by 4:30pm to be considered this year. Just over 1,700 bills and joint resolutions have been filed thus far, and it’s reasonable to expect another 500 to 1,000 more will be filed today. Now, just because a bill is filed doesn’t mean we know what it will actually do, much less whether or not the bill will even get heard in committee. Let’s break down the legislative process, clarify few key terms, and show you how to keep track of legislation as it moves through the Capitol.
THE PROCESS
Once filed, nearly all bills follow the same path to becoming a law: pass out of committee, pass the floor in the chamber of origin, pass committee in the opposite chamber, pass the floor of the opposite chamber, and be signed into law by the Governor. (There are a lot of caveats in that process; we’ll have a longer post outlining the full process soon - stay tuned!)
BILLS vs JOINT RESOLUTIONS
Typically the term “bills” refers to pieces of legislation that are statutory changes - that is, they pertain to the the Oklahoma Statutory Code (i.e. the “regular” state laws). These differ from “joint resolutions,” which are pieces of legislation that will amend the Oklahoma Constitution and therefore are placed on an upcoming ballot for a vote of the people. Bills and joint resolutions are numbered sequentially and identified by the chamber in which they originated (e.g. HB = House Bill, HJR = House Joint Resolution, etc.)
SHELL BILLS
Legislation that has been filed with a title but without any substantial language in the body are called “shell bills.” And there are a lot of them; according to eCapitol’s Shawn Ashley, more than a third of the bills filed thus far fall into this category. Only members of the House are allowed to file shell bills, and most are filed by members of the House leadership. Some shell bills are filed because the member is still working out the final language with the intent of inserting the language later (usually before it is heard in committee). Other shell bills are filed to serve as placeholders for what will become appropriations and budget bills later in the process. That’s why many shell bills have a generic title, like this one, the “Transportation Modernization Act.”
JOINT COMMITTEE ON APPROPRIATIONS AND BUDGET (JCAB)
As the name suggests, the Joint Committee on Appropriations and Budget (JCAB) is a large committee comprised of members of both the House and Senate who deal with - you guessed it - appropriations and budget bills. However, in practice JCAB ends up being the conduit for all kinds of bills near the end of session. It is the exception to all the rules. Bills that were thought to be dead earlier in session will suddenly show up on the JCAB agenda, full of new life and new language (thereby earning the macabre moniker “zombie bills”). JCAB meets with increasing frequency as the legislature nears sine die, often staying late into the evening hours. Typically this culminates in the final days of session with the budget itself, which is often presented just hours (or even minutes) before a vote is held, often with very little time questions or debate. It is the epitome of “how the sausage gets made” and arguably as gross as that phrase suggests.
TRACKING LEGISLATION
There are a number of methods for tracking legislation, both free (e.g. LENS, LegiScan) and paid (e.g. eCapitol). Many people use a combination of sources to keep tabs on bills. We made this brief video to walk you through how to (1) lookup bills on the Legislature’s website, (2) how to track bills using LENS, and (3) how to search for and track bills using LegiScan.
STAYING UP-TO-DATE
Tracking legislation on your own can be fun, helpful, and rewarding, but sometimes things don’t quite go according to plan. This is especially true near the various legislative deadlines and generally anytime there is an important or contentious bill being considered. In these situations, it’s helpful to be connected with an advocacy organization that focuses on a particular issue area. Many of those organizations have lobbyists or other “Capitol insiders” that may know the most current status of bills, which can be key.
keeping an eye on the legislature
I’ll end with an important reminder during these Covid times: it sounds like the Capitol will be operating with a reduced capacity during session this year, including the House & Senate galleries, which may make in-person advocacy more difficult. However, you can watch all committee meetings and floor proceedings on the House and Senate websites and you can always contact your elected officials by phone and email.
Remember: Decisions are made by those who show up. If you don’t show up (virtually or in person), someone else well…and you may not agree with them! Don’t let them be the only voice in your legislator’s ear. Take a few minutes to send an email and start to build a relationship with your elected officials. They’re more accessible than you think!
2020 Election Night Live Blog
We’ll start the conversation whenever we wake up, but the meat & potatoes will be served beginning at 6pm CT and will go until…well, it’s hard to say, really.
This could be a weird night. Hold on to your butts.
2020 Election Resources Compendium
Tens of thousands of Oklahomans have already voted safely and securely by mail, which is truly great and exciting news! If you haven’t yet voted and are still looking for information about some of the nonpartisan names and issues that appear on the ballot, we’ve got you covered. Take a look below for information about the judges up for retention, state questions 805 and 814, and, for those of you in Oklahoma City, the proposed changes to the city’s charter.
Oklahoma is one of a handful of states that places state Supreme Court, Appellate Court, and other judicial officials on the ballot. This year, the only judicial elections are retention elections, which means that the justices in question were appointed to their positions and voters are simply deciding if they should be retained or if the Governor should appoint someone else to the position. If you aren’t an attorney who has practiced in front of these justices, it can be difficult to find information about them to help inform your decision. Thankfully, the Oklahoma Bar Association has created this resource concerning the retention ballot and the candidates thereon.
There are two state questions on the ballot this fall, both of which are somewhat nuanced in what they do. We’ve covered both questions on Let’s Pod This; links to the video & audio versions of those episodes are below.
State Question 805: Video | Audio Only
State Question 814: Video | Audio Only
Our 2020 State Questions Guide is embedded below as image files; you can also download it as a PDF here.
Read:
The League of Women Voters of Oklahoma County, in conjunction with the OKC Municipal Counselor’s office, has created a “plain language” summary of the proposed changes.
Watch:
Listen:
2020 State Questions Guide
There are two state questions on the ballot this fall, both of which are somewhat nuanced in what they do. We’ve covered both questions on Let’s Pod This; links to the video & audio versions of those episodes are below.
State Question 805: Video | Audio Only
State Question 814: Video | Audio Only
Our 2020 State Questions Guide is embedded below as image files; you can also download it as a PDF here.