Protest crackdown faces constitutional challenge

By Dara Kam
News Service of Florida

Civil-rights attorneys are challenging a new set of state laws that establish a crime of “mob intimidation” and enhance penalties for riot-related violence and looting, arguing in a federal lawsuit that the measures unconstitutionally “seek to arrest the peaceful expression of free speech.”

The challenge was filed last Wednesday, two days after Gov. Ron DeSantis signed the controversial package (HB 1), one of his top legislative priorities. The governor laid out a framework for the legislation in September in response to nationwide protests after the May 2020 death of George Floyd in Minneapolis.

Republican lawmakers gave final approval to the changes last week, ignoring objections by Democrats and civil-rights groups that predicted the proposal would be challenged in court. A non-profit organization known as the Lawyers Matter Task Force and other plaintiffs filed the lawsuit in federal court in Orlando, naming as defendants DeSantis, Attorney General Ashley Moody and Orange County Sheriff John Mina.

The legislation “is a horrendous injustice to Florida citizens and infringes on multiple constitutional rights,” Shannon Ligon, founder of the Lawyers Matter Task Force, said in a prepared statement last Wednesday. 

The laws, among other things, create a new felony crime of “aggravated rioting” that carries a sentence of up to 15 years in prison and a new crime of “mob intimidation,” which makes it unlawful “for a person, assembled with two or more other persons and acting with a common intent, to use force or threaten to use imminent force, to compel or induce, or attempt to compel or induce, another person to do or refrain from doing any act or to assume, abandon, or maintain a particular viewpoint against his or her will.”

But the plaintiffs allege the laws expose “peaceful demonstrators and social justice advocacy organizations to civil and/or criminal liability” for other peoples’ conduct.

The laws also fail “to adequately describe what conduct or speech will subject an individual or an organization to liability for ‘inciting a riot,’” the lawsuit said.

The measures “target protected speech under the First Amendment” and “retaliate against” protesters by imposing “excessive bail, fines, or cruel and unusual punishment as a means of hindering the speech of dissenting opinions,” Orlando lawyer Aaron Carter Bates, who represents the plaintiffs, wrote in the 22-page lawsuit.

The legislation “unconstitutionally threatens to impose liability on individuals expressing their rights to free speech regardless of their intent to incite violence, the likelihood that their speech will result in violence, or the imminence of the intended violence,” Bates wrote.

In a prepared statement provided to The News Service of Florida, Bates called the measures an overreach.

“The purpose of these laws are nothing more than an attempt to silence the Black Lives Matter movement and other civil organizations by limiting the ability to protest,” he said. “The First Amendment is a pillar of American democracy, and the anti-riot laws clearly strip Floridians of their freedom of speech and right to assemble.”

In the lawsuit, the plaintiffs said they planned on holding a peaceful demonstration last Saturday to honor Floyd “and other victims of racism and police brutality.” But DeSantis’ signature on the legislation, which went into effect immediately, “effectively barred plaintiffs from exercising their free speech rights because of the resulting penalty of arrest” by Mina and imprisonment by Moody, the lawsuit said.

Peaceful protests could be “characterized as a ‘riot’ due solely on the misconduct of one or two individuals — without any intent by plaintiffs,” Bates wrote on behalf of the plaintiffs.

“As it relates to the planned demonstration, perceived unlawful violence, acts of force, or arrests may occur, even violence perpetrated by law enforcement,” the lawyer argued, adding that the plaintiffs fear criminal and civil liability though their intent is for the protest to be peaceful.

“Plaintiffs must choose between encouraging and advising peaceful demonstrations, on the one hand, and exposing themselves to prosecution and civil liability under the denounced laws, on the other. Refraining from encouraging and advising peaceful demonstrations constitutes self-censorship at a loss of plaintiffs’ First Amendment rights,” the lawsuit alleged.

Also, the laws will inhibit other organizers and groups, the lawsuit said.

“The potential liability to organizations prevents them from effectively advocating for their views, even though group association enhances advocacies,” Bates wrote. “In effect, the bill creates a perpetual threat of liability to plaintiffs and others in the event that anyone plaintiffs encourage or assist is arrested at any point in the future. Accordingly, the bill illegally restricts protected speech and association.”

The legislation, titled “Combating Public Disorder,” is not tailored narrowly enough to protect the government’s interests, Bates argued.

“Unwarranted violence or public disorder during a demonstration is already illegal under Florida law,” he wrote. “The governments’ reported interest in preventing ‘riots’ is already established by existing Florida criminal statutes.”

The lawsuit also alleged that the new measures violate constitutional due-process rights because they “invite arbitrary and discriminatory enforcement.”

At a ceremonial bill-signing event last Monday in Polk County, DeSantis boasted that the bill is “the strongest, anti-rioting, pro-law enforcement piece of legislation in the country.”

The legislation “strikes the appropriate balance of safeguarding every Floridians’ constitutional right to peacefully assemble, while ensuring that those who hide behind peaceful protest to cause violence in our communities will be punished,” he said.

But the plaintiffs’ lawyer argued that the laws are impeding organizers’ ability to follow through on last Saturday’s event, which they spent money to plan. 

The organizers of the rally “are no longer able” to obtain co-sponsors or co-organizers because others are afraid of criminal prosecution, the lawsuit said.

“DeSantis’ signing of the bill into law … generated what appears to be the intended effect (but whatever intentional or inadvertent the effect, the bill’s violation of the Constitution happens and continues.) The ability of plaintiffs to conduct peaceful demonstration without fear of retaliation was impaired,” Bates wrote.