Yes, the First Amendment protects our freedom of speech and peaceable assembly. But our free speech and protest rights are not absolute. State and federal governments may place restrictions, even on peaceful protests, involving the time, place, and manner of political speech. For instance, while street marches are generally protected free speech, authorities can prohibit "a street meeting in the middle of Times Square at the rush hour."
After protests of the Dakota Access pipeline garnered international attention over the past few years, oil and gas companies have lobbied to make demonstrations near pipelines, chemical plants, and other infrastructure illegal. And their efforts have been successful in some states.
"There is nothing more important to the fuel and petrochemical industries than the safety of our people, our communities and our facilities -- and willful, disruptive and dangerous interference with critical infrastructure puts that safety at risk," the American Fuel and Petrochemical Manufacturers said in a statement. "Our advocacy is intended to protect public safety and private property, not chill First Amendment rights, which don't entitle a person to destroy property or create public hazards."
According to reports, a total of seven states (Indiana, Louisiana, North Dakota, Oklahoma, South Dakota, Tennessee, and Texas) have adopted legislation criminalizing pipeline protests. Texas's statute, for example prohibits protesters from blocking or otherwise interfering with the construction of an oil and gas pipeline, transmission line, or other "critical infrastructure" project, and carries a 10-year prison sentence. And South Dakota's "Riot Boosting Act" would allow the state to sue individuals and groups for protesting projects like Keystone XL pipeline, perhaps including if they simply share details of a protest on social media.
The new legislation has been linked to the American Legislative Exchange Council, the conservative group backed by the Charles Koch Institute that pairs corporate lobbyists with state legislatures to write and introduce similar bills nationwide. Groups like the American Fuel & Petrochemical Manufacturers and the American Petroleum Institute, and companies ranging from Dow Chemical Co., Koch Industries, and Occidental Petroleum to Phillips 66 and Valero have been supportive of the new laws.
"These measures are deeply problematic," says American Civil Liberties Union staff attorney Vera Eidelman. "They are clearly targeting protests and particular types of protests, specifically anti-pipeline, pro-environment, pro-environmental justice. All of these laws are about silencing vigorous advocacy." Lawsuits challenging anti-pipeline protest laws are already underway in Louisiana and South Dakota, and another is upcoming in Texas.
Sorting out the free speech issues involved in criminalizing specific protests may take years. If you've been arrested for protesting, talk to an experienced civil rights attorney immediately.