HB1/SB484, otherwise known as the “Combatting Violence, Disorder and Looting and Law Enforcement Protection Act” (the Act), has been derided––and in certain circles championed––as the example par excellence of an anti-protest bill. The Act creates new criminal offenses and sharply increases penalties for actions connected to assembly and even vocal political advocacy. [1] Florida Governor Ron Desantis and his administration have heralded the Act as necessary for public safety.[2] However, underneath the thin veneer of legitimacy painted by the State’s “law and order” lip service, the goal of the bill is obvious: Crush popular mass movements, like Black Lives Matter, by criminalization forms of dissent and assembly. For anyone with a modicum of critical thinking ability, it should come as no surprise that the Act was drafted in the wake of the nationwide marches protesting the police killings of Black men and women, notably George Floyd, Breonna Taylor and Ahmaud Arbery. [3] As currently designed, this reactionary piece of legislation would serve as a bludgeon for the State to wield against any disfavored protest, assembly or even online comment.
Although the Act is a hodgepodge of terrible policy changes, its most distressing feature is the vague and overly broad statutory definitions that pervade the legislation. Even the most zealous defender of the State’s “legitimate governmental interests” would have to admit Governor Desantis’ new crown jewel ferments ripe ground for the manipulation and abuse of constitutionally protected liberties. By exploiting the bill’s statutory vagueness, Florida law enforcement agents are essentially empowered to cast an expansive and arbitrary dragnet over individuals who are simply demonstrating their right to free expression and association, thereby criminalizing behavior that has been protected under the Constitution since its ratification.[4] Because of the aforementioned maladies of the Act, this oppressive power grab by the State should be recognized––and vigorously challenged––as unconstitutional.
The Chilling of Free Speech
The Act’s vague and overly broad statutory language and definitions violates the strictures of the Constitution through its de facto criminalization of speech and assembly.
United States Supreme Court precedent is illustrative on this point. In United States v. Williams, the Court mandated that “[a] conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” [5] Further, in the context of vague statutory language, the Court has held that when, as here, a statute “interferes with the right of free speech or of association, a more stringent vagueness test should apply.” [6] For example, the Court has “struck down statutes that tied criminal culpability to whether the defendant’s conduct was ‘annoying’ or ‘indecent’—wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” [7]
The language of the Act is equally reckless and vague. To begin, section 15 defines “riot” so broadly that it allows for an individual to be arrested for “committing a riot” without any requirement that the individual’s conduct be disorderly and violent or that they commit any actual damage or injury.[8] This unmoored language invites State suppression of speech and expression by expanding not only who is at risk of arrest, but also the severity of subsequent punishment. For example, simply participating in an otherwise peaceful protest, where seven or more people are engaging in disorderly or violent conduct, would subject all those present to a third-degree felony––punishable by up to five years in prison, a $5,000 fine, felony disenfranchisement, and all the burdensome collateral consequences of a felony conviction.[9] The Act also voids any requirement of knowledge or intent. [10] Once an assembly is deemed a “riot,” anyone participating in it, regardless of whether they even know if a window has been broken or shop defaced, is captured by the bill. Further, the language of the Act’s “Prohibition on Harassment in Public Accommodations” further attests to this overreach. This provision does not even require that an individual be on the premise of a public accommodation to take effect.[11] So, if a police officer decides that a protestor is yelling a little too loudly near a restaurant for their taste, that protestor could be arrested for harassment or intimidation and charged with a 1st degree misdemeanor.
Further attesting to the massive discretionary power placed in the hands of law enforcement, Section 15 also allows for the criminalization of someone who merely encourages another’s participation in a public assembly, resulting in situations where a person would be guilty of “inciting a riot” (a third-degree felony, punishable by up to 5 years in prison), if they “encourage” another person to “participate” in a public disturbance later deemed to be a riot. Again, no knowledge or intent limitation exists. Moreover, if a vehicle barrels over a protestor, the Act not only frees that driver from any liability for injury or death as long as the driver was “fleeing for safety from a mob,” it would graciously award that protestor with a 3rd degree felony for “obstructing traffic during an unpermitted protest, demonstration or violent or disorderly assembly.” [12] Not only does this brutal provision shock the conscience, but it unequivocally stifles dissent by making every potential protestor fear that if they step out into the street, then they are fair game for vehicular homicide.
Additionally, under Section 8, the Act creates an ominous, first-degree misdemeanor titled “Mob Intimidation.” [13] This provision covers any group of three or more acting together to “compel or induce, or attempt to compel or induce, another person by force, or threat of force, to do any act or to assume or abandon a particular viewpoint.” [14] Notably, “force” is undefined under Florida statute. This intentional blank slate, by definition, calls out for malleable interpretations and opportunity for abuse. For example, critics of so-called “Cancel Culture” may see an opening to exploit this vague language in order to crack down on online speech advocating for mass movements like Black Lives Matter or BDS. However, the Act’s erosive effect on free association does not end there. Section 3 extends RICO liability to any person or organization “who organizes or funds a violent or disorderly assembly.” [15] Considering its overly expansive statutory language, it’s easy to see how this provision may chill free speech. Any mass movement or political organization will be stifled in conducting basic organizing due to the threat of being targeted by an administration that disfavors them. Yet, even while the Act attempts to criminalize constitutionally sanctioned behavior, it should be noted the Court has affirmed that the First Amendment protects “advocacy even of unlawful action so long as that advocacy is not ‘directed to inciting or producing imminent lawless action and … likely to incite or produce such action.’” [16]
The myriad of these sanctioned possibilities under the Act, and the explosion of criminal liability that they create for Americans, would indisputably chill freedom of speech expression, and association through the suppressive power of State punishment.
[1] https://www.aclufl.org/en/written-testimony-oppose-hb-1-and-sb-484-anti-protest-bill
[2] https://www.flgov.com/2020/09/21/governor-ron-desantis-announces-the-combatting-violence-disorder-and-looting-and-law-enforcement-protection-act/
[3] http://www.floridapoliticalreview.com/ron-desantiss-protest-bill/
[4] https://www.aclufl.org/sites/default/files/field_documents/aclu_of_florida_-_oppose_hb_1_and_sb_484_-_anti-peaceful_protest_bill.pdf
[5] 553 U.S. 285, 304 (2008).
[6] Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010) (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 490, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).
[7] Id. at 20 (2010) (citing United States v. Williams, 553 U.S. 285, 306 (2008)); see also Papachristou v. Jacksonville, 405 U.S. 156, n. 1, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (holding vague an ordinance that punished “vagrants,” defined to include “[r]ogues and vagabonds,” “persons who use juggling,” and “common night walkers.”
[8] https://www.aclufl.org/sites/default/files/field_documents/aclu_of_florida_-_oppose_hb_1_and_sb_484_-_anti-peaceful_protest_bill.pdf
[9] Id.
[10]https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0001__.docx&DocumentType=Bill&BillNumber=0001&Session=2021
[11] https://www.flgov.com/wp-content/uploads/2020/09/Combatting-Violence-Protection-Act.pdf
[12] https://www.flgov.com/2020/09/21/governor-ron-desantis-announces-the-combatting-violence-disorder-and-looting-and-law-enforcement-protection-act/
[13] https://www.aclufl.org/sites/default/files/field_documents/aclu_of_florida_-_oppose_hb_1_and_sb_484_-_anti-peaceful_protest_bill.pdf
[14] Id.
[15] https://www.flgov.com/wp-content/uploads/2020/09/Combatting-Violence-Protection-Act.pdf
[16] Holder v. Humanitarian Law Project at 43–44 (citing Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (emphasis added)). In NAACP v. Claiborne Hardware Co., the Court held that “[t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” 458 U.S. 886, 908 (1982). Further, in Scales v. United States, the Court held that a person who associates with a group that breaks the law in order to achieve its ends “does not thereby necessarily forfeit the First Amendment’s protection for freedom of association.” Holder v. Humanitarian Law Project at 44 (citing Scales v. United States 367 U.S. 203, 229, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961)).
