Proposed Indiana Senate Bill 285 Will Fence In Protesters

By  Timothy McMahon (Rutgers Law Student) 

When a massive crowd of people takes to the streets marching for a cause it is breathtaking to behold, and could have a symbolic effect that can last generations. From the Selma Marches to The Million Woman March, the images and messages that emerged from these demonstrations have left lasting imprints on America’s history. It is natural that when protesters look at the best way to effectuate their message, they turn to these marches as examples and take their message to the streets. We have seen over the last few years activist groups such as  Occupy Wall Street and Black Lives Matter do just that, by taking their fight to the streets. These protesters feel that by blocking traffic they are raising awareness for causes of social justice. Similar to the protesters who marched in those historic marches, today’s protesters hope that by taking to the streets they bring about social change.

Several Republican State Legislatures have introduced bills in 2017 addressing these protesters who spontaneously demonstrate in the middle of streets. My home state of Indiana is one of such states to propose a version of this bill. The proposed bill, Senate Bill 285, states that a public official must after fifteen minutes of receiving news about a road blockage due to protesters blocking the roadway send all available law enforcement to remove the protesters by “any means necessary”. The sponsor of the bill, Senator Tomes, claims that the bill is designed to keep traffic flowing smoothly, keep the roads open for emergency services, and for commerce related reasons. Opponents claim this bill is designed chill political speech and also justifies the use of brutal police tactics. If this proposed bill passes and becomes law, it may be challenged as being unconstitutional.

Time, place, and manner restrictions are constitutional, so long as they are content neutral, narrowly tailored, serve a significant government interest, and it leaves ample alternative channels for communication. Following this guideline, it is likely this proposed Indiana bill will likely pass constitutional muster. First the bill is content neutral, it does not specifically say certain groups or messages can protest in the street and certain groups or messages cannot. Second the bill serves a significant government interest, to promote the free flow of travel and prevent the disruption of emergency services are the stated government interest. The government could also state safety and disturbance of the peace as an interest as well. There have been several incidents that show protesters being mowed down by vehicles and fights erupting that would support a claim that safety and keeping the peace are significant government interests.

This restriction leaves ample alternative channels for communication available to groups who protest. Courts have read alternative channels to mean other things including different channels and mediums of communication. An alternative does not need to be first choice of a way to communicat . In The City of Chicago v. Alexander, the court said that protesters being denied overnight stay at a park could come back the next day to protest, or take the protests to the sidewalks right outside the park, or any number of different things. The proposed bill is designed only to prevent spontaneous protests in the street. Protesters may still take their cause to the local park or to the sidewalk without any quarrel, or as Senator Tomes claims that groups that want to hold a demonstration in the streets should apply for permits in advance in order to so.

While permits requiring advance notice that follow time, place, and manner restrictions are generally deemed constitutional, courts have created a way out for spontaneous demonstrations to circumvent these usual restrictions. A permit or ordinance must allow for some alternative for expression for “fast breaking” events. If there are no alternative form of expression or exception to these permits or ordinances for these fast breaking events, then these notice requirements may place a heavy restriction on freedom of speech.  “Spontaneous expression may be vital to a speaker’s message because a spontaneous event expressing a viewpoint on a topical issue will almost inevitably attract more participants and more press attention, and generate more emotion, than the “same” event 30 days later,” Doyle v. Commissioner, New Hampshire Department of Recourses and Economic Development. A general outright ban on spontaneous demonstrations in public spaces are also deemed to overly infringe on protester’s freedom of speech.

The state will argue that there are plenty of alternative ways to get the message out there including sidewalks and parks. Opponents of the bill will claim that their message losses the same effect by not taking in to the streets. Would the Selma Marches and the other famous marches have had the same social impact as they did if they been force to a park or had to be on the sidewalk? In the protester’s view, blocking traffic is essential for their protests to be effective. That being said the general population has a right to move freely, and police usually do not violate the protester’s first amendment rights by arresting them for impeding others from traveling or entering into public places. Plainly speaking, protesters do not have a first amendment right to block vehicles or pedestrians.

If there is a fatal flaw with this bill, it could be argued that it does not provide an alternative for fast breaking events. If the Indiana Legislature would like this bill not to be struck down, they would be wise to add a sentence or two that would make it clear that the officers are to move the protesters to an appropriate place or another alternative place where they could demonstrate.

This proposed bill would likely satisfy the final requirement, in being narrowly tailored. It does not appear to be overbroad by including more speech than is required to achieve their legitimate government interests.

It is also worth noting that “any means necessary” would not mean that police could use brutal tactics. The police would still be subject to the fourth amendment excessive force laws as they were laid out in Graham v. Connor. In conclusion, this bill is likely to pass intermediate scrutiny for the time, place and manner restrictions. That being said, there are still questions on whether it provides an alternative channel or an exception for spontaneous demonstrations.

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