The Washington PostDemocracy Dies in Darkness

Harsh new anti-protest laws restrict freedom of speech, advocates say

The bills may get their first test soon in Louisiana, where three activists were arrested this month by uniformed police officers working for a private company.

Police use a water cannon on demonstrators who were protesting the Dakota Access Pipeline near the Standing Rock Indian Reservation in North Dakota on Nov. 20, 2016. (Stephanie Keith/Reuters)

This story is in partnership with InsideClimate News, a nonprofit, independent news outlet that covers climate, energy and the environment.

A new oil pipeline was looming in Oklahoma, and Ashley McCray wanted to be part of the resistance. She and other activists set up camp near McCurtain, one of the towns where the Diamond Pipeline was slated to slice through the landscape.

Then the surveillance started. A small plane circled above the camp, McCray recalled, appearing to photograph its occupants. Later, she said, helicopters whirred overhead. Demonstrators were pulled over and questioned on their drive in or out, though the local sheriff said people were only pulled over for violating traffic laws.

Only days after McCray and the coalition announced their plans to resist the Diamond Pipeline construction, an Oklahoma state lawmaker introduced a bill to stiffen penalties for interfering with pipeline projects and other “critical infrastructure.” The law, which the governor signed, imposed punishments of up to 10 years in prison and $100,000 in fines — and up to $1 million for any organization “found to be a conspirator.” Merely stepping onto a pipeline easement suddenly risked a year in prison.

It became a trend.

Dozens of bills and executive orders that aim to restrict high-profile protests have been introduced in at least 31 states and the federal government since November 2016. Fifteen have been enacted, according to the International Center for Not-for-Profit Law, including the critical-infrastructure pipeline bill signed in Oklahoma and similar bills in Louisiana and Iowa. Some of the laws would expand definitions of rioting and terrorism and would even increase penalties for blocking traffic.

"That was really pretty successful in thwarting a lot of our efforts to continue any activism after that,” McCray said.

A member of a Shawnee tribe in Oklahoma, McCray had been at Standing Rock — a high-profile confrontation that attracted thousands of people to fight the construction of the Dakota Access pipeline. In early 2017, she wanted to make a similar statement at a camp called Oka Lawa, this time against a pipeline being built across tribal lands in her home state.

But the dynamic had changed. A Republican was in the White House — one who encouraged physical violence against protesters on the campaign trail. When President Trump was inaugurated, activists saw the balance of power tilt toward energy companies.

The pipeline bills may get their first test soon in Louisiana, where three activists were arrested this month on felony charges stemming from one of the new laws after they maneuvered kayaks on a bayou to block construction of an oil pipeline. They were arrested by off-duty officers with the state Department of Public Safety and Corrections who were armed and in uniform but were working at the time for a private security firm hired by the pipeline developer.

If the district attorney brings charges, the activists will challenge the law itself, said William Quigley, a professor at Loyola University College of Law in New Orleans who is representing the three people pro bono. They face up to five years in prison.

“I think this shows how ridiculous this law is if this is the way it’s going to be applied,” he said, pointing out that a private company had apparently ordered the arrests.

In separate incidents, five more protesters and one journalist were arrested over the weekend under the new law in Louisiana after activists set up a platform in the trees to block work on the pipeline.

Law enforcement and private companies have surveilled pipeline campaigners in Louisiana, Virginia, Washington, North Dakota and other states, according to public records obtained by environmental groups and news organizations. Covert surveillance risks equating political protest with criminal activity, said Keith Mako Woodhouse, a historian at Northwestern University who wrote a book about radical environmentalists.

“It gives a sense that law enforcement is, if not on the side of, at least more sympathetic to the industries and practices that are being protested,” he said. “Presumably they’re not surveilling the energy companies.”

In 2017, 84 members of Congress wrote a letter to Attorney General Jeff Sessions asking if protesters who tamper with pipelines could be prosecuted as domestic terrorists. Sponsors of the state pipeline bills have also invoked terrorism.

“There’s a legal process to stop something,” said Oklahoma state Rep. Mark McBride (R), who sponsored another bill that assigns civil liability to anyone who pays protesters to trespass. “But if you’re chaining yourself to a bulldozer or you’re standing in the way of a piece of equipment digging a ditch or whatever it might be, yes, you’re causing harm to the project and to the person that’s contracted to do that job.”

Some pipeline opponents have conducted dangerous and illegal stunts, cutting pipelines with oxyacetylene torches or closing valves, but the majority of protests have been peaceful. If they’ve broken laws by trespassing, activists say, they’ve done so as part of the tradition of civil disobedience to enact change.

“All of the social progress we’ve made has depended, over the entire history of this nation, from the very beginning, on that ability to speak out against things that are wrong, things that are legal but should not be,” said Carroll Muffett, president of the Center for International Environmental Law. “These bills put that fundamental element of our democracy in jeopardy.”

Advocacy groups fear the legislation uses a handful of dangerous incidents as a pretext to intimidate mainstream advocates. The American Civil Liberties Union in Oklahoma is considering legal challenges, but said it may have to wait until a district attorney tries to use the new law.

“By equating those kinds of things together, essentially political speech on one end and on the other end outright terrorism,” said Brady Henderson, legal director for the Oklahoma chapter of the ACLU, “the [Oklahoma] bill is a pretty gross instrument.”

The Sierra Club has a policy against engaging in civil disobedience. But the Oklahoma bill’s conspiracy element — which says a group can be charged with 10 times the fines given to a person who violates the provisions — worries the organization’s Oklahoma director, Johnson Grimm-Bridgwater.

“The law is punitive and is designed to create friction and divisions among groups who normally wouldn’t have a second thought at working together,” he said.

David Snyder, executive director of the First Amendment Coalition, says there is a worrying trend on both sides of the aisle to suppress speech.

“I think a lot of people feel a lot more threatened than they have in a long time,” he said, “and I think that’s true on all sides of the political spectrum. And when people feel threatened, they tend to lash out.”

Soon after the coalition to resist the Diamond Pipeline announced plans to establish Oka Lawa, law enforcement agencies had identified “environmental rights extremists” as the top domestic terrorist threat to the project, according to a Department of Homeland Security field report obtained by the Washington Examiner.

The report, which the Department of Homeland Security will not confirm the authenticity of, said protesters could spark “criminal trespassing events resulting in violence.” It advised authorities to watch for people dressed in black because they could be “indicators of planned criminal or violent activities.” An FBI team arrived to train local police on how to handle the protest camp.

At Oka Lawa, McCray said the new law discouraged people from joining the camp. The movement to stop the Diamond Pipeline never drew the attention that made the Dakota Access pipeline protests a national cause. Activists closed the camp in August 2017, and the Diamond Pipeline was completed later that year.

After Oka Lawa, McCray channeled her energy into politics. She’s now running for a seat on the Oklahoma Corporation Commission, which regulates the energy industry. But even as a candidate, McCray says, she watches her words and her Facebook posts, afraid of being implicated as a conspirator if someone were to violate the law, even if she doesn’t know the person.

“I don’t feel safe, honestly,” she said.