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Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on free speech, this analysis masks the threat of such legislation in the everyday lives of already targeted people and communities. In actuality, the application of anti-protest legislation is not limited to “exceptional” circumstances, increasing everyday surveillance and public order regulation for Black, Latinx, and other targeted communities. The consequences of anti-protest legislation on highly surveilled communities are alarming.

This Article examines the construction of mass protest law exceptionalism and advocates for using resistance frameworks, such as joyful protest, to better understand the burdens and consequences borne by communities. This analysis incorporates text of recent mass anti-protest legislation, proponents’ arguments in media, and debate in legislative sessions. This framing exposes the lack of exceptionalism, surfaces the thin line between mass protest and everyday public order regulation in targeted communities, and demonstrates the high stakes of ignoring this blurred line when considering mass anti-protest criminal laws.


Criminal Law | Criminal Procedure | Law