America was built on the backs of protesters. In 1765 and 1766, crowds loudly protested British taxes and other oppressive measures in the colonies. Even in the crafting of the Constitution, the right to assemble was guaranteed to every American citizen through the First Amendment to the Bill of Rights. Since then, protesting has influenced many major changes such as the abolition of slavery, women’s suffrage and expanded rights for LGBTQ+ people.
However, there has been a noticeable trend of states and the federal government restricting and even criminalizing some aspects of protesting. The First Amendment permits the government to impose limited restrictions on protesting. These limits must be narrow and cannot violate the rights guaranteed by the Constitution.
What Protest Protections Exist in the U.S.?
The right to assemble is assured by the First Amendment to the U.S. Constitution. Courts have long viewed peaceful assembly as integral to legal protections for unorthodox groups and to supporting free speech. In De Jonge v. Oregon, the U.S. Supreme Court held that the right to assemble is fundamental and applies to all states through the Fourteenth Amendment.
The right to assemble allows citizens to engage in mass communication through the use of demonstrations, gatherings, picket lines and parades. It is often treated by courts as an extension of the right to free speech and freedom of expression.
Although the First Amendment prohibits Congress and the states from passing legislation that reduces or contradicts the right of citizens to peacefully assemble, this right is not absolute. The government may impose reasonable limits on the time, place and manner of a peaceful assembly. The Supreme Court clarified these limits in Ward v. Rock Against Racism, ruling that such restrictions are constitutional as long as they are not based on the content of the speech and serve a significant government interest.
The First Amendment not only protects spoken or written words, but also symbolic speech as affirmed in Tinker v. Des Moines. This means citizens have the right to wear symbolic expressions, such as black armbands protesting the Vietnam War or a pride flag at an LGBTQ+ protest so long as the expression is not disruptive or unlawful.
However, speech that is intended and is reasonably likely to provoke violence is not protected. This standard came from Brandenburg v. Ohio, where the Court held that the government may intervene when speech is directed at promoting lawless action and inciting violence.
In addition to these protections, courts have put several other important safeguards in place. These include:
- Giving the highest level of protection to public forums, such as streets, sidewalks and parks, where the government generally cannot ban protests.
- Allowing protestors to record police activity.
- Issuing protest permits based on objective standards that cannot be used to suppress different viewpoints.
What is the Purpose of Anti-Protest Laws in the U.S.?
A wave of anti-protest legislation began in 2016 and continued into 2017 as a response to the Standing Rock protests. These protests captured the world’s attention due to intense media coverage, police and legislative decisions. For months, thousands of Native Americans and environmental activists protested the construction of a pipeline through Native land. This led federal and state legislators to pass laws framed as protecting critical infrastructure and public safety but ultimately limited the rights of protesters and the right to assemble. The number of anti-protest bills doubled and almost 60 bills were introduced at the state level.
The Impact of the Critical Infrastructure Protection Act
To address these perceived threats, the American Legislative Exchange Council (ALEC) developed the Critical Infrastructure Protection Act as a model policy. This model penalizes anyone for trespassing on “critical infrastructure,” which can include pipelines, cell towers, data centers and more. It also provides guidelines for penalties and potential financial liability for any organization that conspires to assist protesters. This model protects the oil and gas industry from protests. While doing so, it also redefines the meanings of terrorism, trespass and sabotage. In addition, it allows organizations to be penalized for the activities of individual actors. On the other hand, critics of this model argue that provisions like collective liability and lack of specificity may lead protesters to accidentally break the law. This has raised constitutional concerns about free assembly and free speech.
The Ohio Bill
Building on ALEC’s model, Ohio Senate Bill 33 became one of the more prominent state-level efforts to increase penalties related to protests near critical infrastructure. This bill follows ALEC’s policy model by seeking higher penalties for trespass and property damage that may affect critical infrastructure. While willful destruction of property and trespass were already illegal in the state, the enacted law now imposes even heavier penalties and further criminalizes anti-protest actions. Under the law, activities that may be criminalized include offering rides or medical aid to protesters. Its broad language is so extensive that even chanting along with protesters could be interpreted as supporting damage to critical infrastructure, meaning individuals could face criminal charges for something like chanting.
In 2025, the bill successfully passed both chambers of the legislature. This marks a significant shift from earlier years when similar laws faced legal challenges in other states, such as the statute passed in South Dakota in 2019 which criminalized protest actions and protester assistance but was struck down by a federal judge. That decision continues to serve as a legal precedent, raising constitutional concerns about expanding anti-protest law.
The Nationwide Spread of Anti-Protest Legislation
Across the country, many states have also created or expanded their own anti-protest laws based on the “critical infrastructure” guidelines. Several states, including Kentucky, Texas, North Dakota and Arkansas, named places such as pipelines, power plants and water treatment centers as “critical infrastructure,” where even stepping onto these restricted properties can result in a felony. Other states, such as New York and Minnesota, are considering passing similar laws that could impose restrictions on protesting near these sites. Staunch First Amendment supporters argue that these laws go beyond traditional trespass rules and impose penalties that can discourage the American people from participating in lawful protest and limit First Amendment rights.
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