Governmental attacks on free speech cannot be tolerated. This time, it comes in the form of a new Arizona statutory assault on the rights to peaceful assembly and free speech. The Arizona Republican party launched the in the state Senate. Incredibly, the Senate passed a bill sanctioning criminal racketeering charges against anyone who either participates in, or helps organize, a protest that ultimately turns into a riot.
Incredibly, the statute also permits Arizona to seize the assets of any person who either planned or participated in a peaceful protest that turns into a riot. Furthermore, criminal conspiracy laws typically require proof that the accused actually took a step (participated in an act) to implement the subject of the conspiracy. But under this amazing statute the state can gain a conspiracy conviction to riot without any proof that the accused actually took any steps to implement the conspiracy.
Arizona Statutory Assault on Basic Fundamental Rights
These provisions are nothing less than an assault on the First Amendment “right of the people to peaceably assemble.” It is also an attack on free speech. The Arizona statute, if approved by Arizona’s house, punishes a prior peaceful assembly that subsequently turns into a riot. It would have allowed Arizona to arrest Martin Luther King, Jr. and charge him with racketeering in any instance where one of his peaceful protests later turned violent. And it would have applied even if Dr. King had left the peaceful assembly before violence broke out.
The chilling effect on free speech is obvious. Peaceful protesters are faced with asset forfeitures whenever a march or protest turns violent. They are criminally culpable for the actions of third parties who precipitate violence. Persons who simply participate in the planning of a protest or assembly that turns violent are also subject to racketeering charges and asset forfeiture. And racketeering charges and asset forfeiture will apply even if such persons attempt to stop the riot.
There already are ample criminal statutes on Arizona’s books that address riots, including criminal damages, assault, and inciting riots. We can’t possibly imagine why further criminal statutes are necessary.
The Arizona statutory assault on the First Amendment is self-evident. Claimed justification for the statutory overreach does not withstand any type of rational scrutiny. Consider the thinking of State Republican Senator Sylvia Allen, who acknowledges that existing Arizona laws already cover overt acts of violence. Her rationalization for the new law: “If they [protesters] get thrown in jail, somebody pays to get them out. There has to be something to deter them from that.”
Huh?
The Statute Impairs Basic Constitutional Rights – It Will Never Withstand Scrutiny
We would suggest the good Senator take another look at the Constitution. We remind her that Arizona’s new statute, if enacted, attacks two fundamental constitutional rights. It infringes upon the First Amendment rights of assembly and free speech. Statutes that impair the free exercise of these rights must run through a very difficult constitutional gauntlet.
Senator Allen, please take notice that any statute that purports to infringe these fundamental rights must satisfy the strict scrutiny requirements laid out by the Supreme Court. And just to remind you, that means your new statute must meet these three tests. First, it must be justified by a “compelling governmental interest.” What would that be here? Second, it must be narrowly tailored to achieve that goal. No chance of that here. Third, it must also be the least restrictive means for achieving that compelling governmental interest. We would wish you good luck with each of these, but we wouldn’t mean it.
This is yet another example of a law that addresses no compelling need at all. Arizona’s current laws are more than adequate to address riotous behavior. It is yet another law that Arizonians don’t need. And it is not enforceable under the Constitution. It is simply another assault on fundamental constitutional rights by a legislature that does not know what it is doing.
