Alabama’s move to criminalize protest is an unacceptable assault on free speech

The right to protest and the freedom of speech are two of the most sacred rights enshrined in our nation’s Constitution. We knew attacks on these rights would come in state legislatures in 2021 in response to federal elections and social movements. This happened in the 2009 session after the presidential election, so we were prepared for it again in 2021. Or at least we thought we were. 

The fervor with which state legislators have moved to restrict our most basic rights, especially those enshrined in the Constitution, has been alarming. One specific trend we’ve seen across the Deep South – under the guise of preventing “riots” – has been an attempt to criminalize protest and the freedom of speech. This idea first cropped up in Florida late last year, pushed by Gov. Ron DeSantis, and quickly made its way to Mississippi, Georgia and Alabama. 

In Alabama, this came in the form of HB 445, a bill sponsored by state Rep. Allen Treadaway, a retired assistant police chief from Birmingham. Following a summer of protests against police brutality, racial inequality and Confederate monuments, Treadaway is attempting to create a chilling effect on all protests by criminalizing certain types of speech, taking away control over local budgets and creating new mandatory minimum sentences and new crimes.

Grassroots organizations like Project Say Something, Reclaiming Our Time and Cell A65 have been out in their local communities – day in and day out – for months, protesting against injustice. Some legislators are trying to find new and different ways to send people like these community leaders to prison instead of standing in solidarity with them, dealing with the brutalization of protesters by police in cities like Huntsville, listening to their demands for equity and looking for opportunities to create policy change that would positively impact our communities.

But none of this is new in Alabama. We come from a long and storied history of courageous protest. For example, HB 445 would seek to criminalize protests that take place in a public roadway without a permit. But as several legislators have already pointed out, the historic Selma-to-Montgomery March was not a permitted march, and those protests came at a time when such permits were denied as an additional measure to suppress free speech. It is not far-fetched to assume that local law enforcement might use mechanisms such as permit denials, the threat of sentencing enhancements and private property protections as opportunities to quell protest in 2021.

In fact, following the successful completion of the Selma-to-Montgomery March in 1965, the Alabama Legislature passed a joint resolution that could have been ripped from an interview with HB 445’s sponsor today. It reads, in part:

The First Amendment to the Constitution of the United States of America guarantees to the people the right to peaceably assemble and petition the Government for redress of grievances [but] these demonstrations have far exceeded both in scope and numbers of participants anything reasonably necessary to present a petition for a redress of grievances or to dramatize any grievance; and the size, scope, and frequency of these demonstrations has placed such an unreasonable burden upon the various law enforcement agencies of this State… Alabama citizens are basically law abiding and have a deep respect for law and order, but abhor these illegal acts of civil disobedience exhibited by such mass demonstrations which have caused deaths, personal injuries, destruction of property and the interruption of business and private pursuits of Alabama citizens…if [these protests] are not regulated by appropriate judicial means and are allowed to continue unregulated and unabated [they] will constitute a grave threat to the public safety and seriously endanger life and property of the demonstrators and public alike.

The language of this Jim Crow-era Alabama House joint resolution is strikingly similar to the words spoken by Treadaway in an interview last month:

“Because the freedom of speech is so important, our founding fathers made it the first enumerated right in the U.S. Constitution, but when protest turns to violence, that liberty no longer applies. ... We must protect Alabama businesses, public property, and first responders from the kind of mob rule that took over the streets of Birmingham this summer, and my legislation establishes a firm first step toward achieving that goal.”

Alabama lawmakers are dangerously close to passing laws with the same justification and impact as their predecessors did in 1965 – when the racist intent was perhaps more explicit, but not all that different. It’s time to put on the brakes and reconsider the consequences, both intended and unintended, of such actions.

Alabama’s attacks on these rights will not go unchallenged, unnamed, or unaccounted for. It’s just a matter of how far they want to take it and how much money they want to spend on what will once again be a losing and expensive court battle over an unconstitutional law.

Unfortunately, Alabama remains more concerned about the protection of property than it does the rights of its people.  As Dr. Martin Luther King Jr. famously noted, “Certain conditions continue to exist in our society, which must be condemned as vigorously as we condemn riots. … Social justice and progress are the absolute guarantors of riot prevention.”

Instead of reckoning with the material conditions that have led to these “riots,” certain legislators are choosing to criminalize these actions. We know until these conditions are addressed there will always be people who are oppressed and there will always be people who protest. Hopefully, eventually, our legislators will decide to listen.

On Thursday, March 18, HB 445 passed in the House with 74 votes in favor, 25 against and one abstention. Next, it will be referred to a Senate committee for consideration.

Katie Glenn is a policy associate for the SPLC Action Fund. Delvin Davis is a regional policy analyst for the SPLC Action Fund.

Photo by Imagn/The Montgomery Advertiser/Mickey Welsh