Touting law and order is a tried-and-true method of silencing American citizens in our democracy.
On August 20, Tennessee Governor Bill Lee (R) signed a law that makes camping on state property, among other protest-related offenses, a felony. In Tennessee, people convicted of felonies lose the right to vote.
The passage of the law follows a summer of unrest in the state. For much of June, July, and August, protesters for racial justice occupied the Nashville capitol day and night. With the exception of a demonstration in late May when protesters set fires in and around a courthouse, protests have been largely peaceful.
Lt. Gov. Randy McNally (R) said the law aims “to prevent what has happened in other cities like Portland and Washington, DC.” But civil rights advocates are concerned the law violates protesters’ rights. In a letter to Governor Lee, ACLU of Tennessee said the law “chills free speech, undermines criminal justice reform, and fails to address the issues of racial justice and police violence raised by the protesters.”
Similar legislation is pending in several other states.
The New Law
The new law, SB8005, increases penalties for a number of protest behaviors. Notably, people arrested for unauthorized camping, vandalism, rioting, or blocking a road will be detained for a minimum of twelve hours without bail. Additionally, the law increases existing fines for acts including obstructing emergency vehicles and vandalizing state property.
It also upgrades certain crimes from misdemeanors to felonies. Under SB8005,
- “Knowingly caus[ing] physical contact with a first responder” in an “offensive or provocative” way while displaying a deadly weapon is now a Class C Felony punishable by up to 15 years in prison.
- Unauthorized camping on state property between 10 pm and 7 am is now a Class E Felony punishable by up to 6 years in prison.
By default, people convicted of a felony lose the right to vote in the state of Tennessee. While those convicted of “infamous” offenses including rape, murder, and voter fraud are permanently disenfranchised, those convicted of other felonies can apply to restore their voting rights once they have completed their sentence.
A “Law and Order” Response to Protests for Racial Justice
Tennessee’s Republican-dominated state legislature passed the law on August 12, the last day of a special three-day session to address COVID-19 and widespread protests.
In Nashville, a protest group called the People’s Plaza had occupied part of the state capitol for 62 days and nights. On August 14, two days after the passage of SB8005, they released a statement saying they had chosen to leave the plaza and transition to a more “sustainable format”. They have since returned for multiple protests at the capitol.
The protests were not limited to Nashville. Throughout the summer, crowds gathered to protest police brutality in cities across the state, including Memphis, Knoxville, and Chattanooga.
According to reporting from the Tennessean, State Senator John Stevens (R) said the felony charges were warranted because “people that want to overthrow the government should lose their right to vote.” There is no evidence that the protesters in Tennessee are seeking such a dramatic action.
Governor Lee, who campaigned on criminal justice reform, said there were “aspects of the law [he] might have done differently,” but ultimately supported the harsher penalties to combat “lawlessness” at protests.
Democratic lawmakers rejected that narrative. “We seem not to worry about protesting when [W]hite people show up with AR-15s. But when Black people show up with signs, we try to pass legislation,” said State Representative Jason Hodges (D), also according to the Tennessean.
The new law builds on previous legislation passed following Black Lives Matter protests in 2017 and Occupy Nashville protests in 2012. According to Dr. Michelle Deardorff, Professor of Government and Department Head of Political Science at the University of Tennessee Chattanooga, the legacy goes back further. Felony disenfranchisement laws themselves have their roots in the Reconstruction era, when legislators sought to limit Black men’s right to vote.
Deardorff says the law exposes centuries-old but increasingly polarized ideological conflicts: between security and liberty, and between voting as a right and voting as a privilege. How it’s enforced — particularly whether it’s enforced more heavily on protesters of color — will also reveal the racism underlying parts of the legal system.
Civil Rights Advocates Watching Closely
The ACLU-TN is monitoring the situation and will consider legal action.
According to Dr. Deardorff, the outcome of legal challenges to the bill will largely depend on enforcement. States have the right to regulate the time, place, and manner of protest — not the content. If the police response to a protest for gun rights is different from the police response to a protest for racial justice, it could signal a violation of protesters’ First Amendment rights.
Protests continue across the state.
Marie Mott, co-founder of I Can’t Breathe Cha and a candidate for a seat on the Chattanooga City Council, was “appalled, but not surprised” upon hearing about the law, and also noted the legacy of legal retaliation to the Civil Rights Movement.
Mott faces misdemeanor charges for burning a Hamilton County Sheriff’s Office flag and blocking an emergency vehicle during protests in July. The judge hearing her case had to recuse himself after Mott shared a photo from his Facebook page showing his 9-year-old grandson holding a thin blue line flag with the judge’s caption, “very proud”. Mott is under investigation for felony retaliation for sharing the post.
Mott says she will continue to ”make good trouble” while recognizing that protesting bears additional risks for some. For certain protesters, a felony charge could result in deportation.
Mott still “would encourage everybody to get their hands dirty.” For those who would rather not march, Mott recommends writing an op-ed or starting a community garden as additional ways to get involved.
Dr. Michelle Deardorff, Zoom interview with Ciara McLaren, Sep 4, 2020
Marie Mott, phone interview with Ciara McLaren, Sep 11, 2020
Kimberlee Kruesi, Jonathan Mattise, “Tennessee gov signs bill upping penalties on some protests”, AP, Aug 21, 2020, https://apnews.com/f465062c6eb6ab38c8df99b40f687fe4, accessed Sep 18, 2020
ACLU-TN, SB8005 veto letter, Aug 14, 2020, https://www.aclu-tn.org/wp-content/uploads/2020/08/ACLU-TN-SB-8005-Veto-Letter.pdf, accessed Sep 10, 2020
Bill Track 50, TN SB 8005, https://www.billtrack50.com/BillDetail/1240453, accessed Sep 10, 2020
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Katherine Burgess, Laura Testino and Sarah Macaraeg. “Protesters gather at Memphis gas station where US marshals shot driver mistaken for murder suspect”, Memphis Commercial Appeal, Aug 26, 2020, https://www.commercialappeal.com/story/news/2020/08/26/protesters-gather-memphis-gas-station-where-us-marshals-shot-driver-mistaken-murder-suspect/5637181002/, accessed Sep 10, 2020
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