Posted: January 27, 2022
Updated: February 3, 2022
by Matthew Rothschild, Executive Director
This week, the Wisconsin legislature passed an “anti-riot” bill that Gov. Tony Evers must veto because the bill reeks of guilt by association and would infringe upon our constitutional right to freely assemble.
As Rep. Francesca Hong said, this bill “is a declaration of war against the First Amendment.”
The bill says that anyone who “attends a riot or who refuses an order to disperse a riot is guilty of a Class A misdemeanor,” with a minimum sentence of 30 days.
Note that mere attendance at something that is defined as a riot would be a crime, even if there is no order to disperse. Currently, the Wisconsin statute on “unlawful assembly” requires the giving of an order to disperse before anyone can be prosecuted under it.
And how does the new bill define a riot?
A riot is defined as “an act of violence” or “a threat to commit an act of violence by one or more persons who are part of the unlawful assembly.” So you could be at a protest of 300 persons, and if one person in the crowd makes a stupid threat to go break a window, everyone in that crowd could be guilty of a misdemeanor and go to jail for at least a month.
The new bill also says that it would be a felony for “a person who knowingly participates in a riot that results in substantial to the property of another person or bodily injury to another person.” But what does “knowingly participates in” mean? If you went to the protest, and you heard one person make that stupid comment about breaking a window, and you refused to leave, you’d be guilty of a felony? What if you heard the stupid comment, and told the person to shut up? You still could be prosecuted because you had knowledge of the threat but stayed there.
Under the bill, there is no requirement that you have to be the person who engages in the violence or the one who issues the threat of violence to be guilty of rioting. You just have to be in the group where one person does that.
This is the worst kind of guilty by association and a clear violation of our freedom of speech and assembly.
The U.S. Supreme Court ruled in NAACP v. Claiborne Hardware Co. in 1982 that “the First Amendment restricts the ability of the State to impose liability on an individual solely because of his association with another. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.” It also said: “The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.”
This Supreme Court precedent blows the bill out of the water.
What’s more, this bill is totally unnecessary.
Unlawful assembly is already a crime in Wisconsin.
Violent acts are already crimes in Wisconsin.
Direct, imminent threats to specific persons are already crimes in Wisconsin.
Damage to property is already a crime in Wisconsin.
Disorderly conduct is already a crime.
“Blocking or obstructing the lawful use by any other person, or persons of any private or public thoroughfares, property or of any positions of access or exit to or from any private or public building” is already a crime in Wisconsin, under the “unlawful assembly” statute.
So why, actually, do we need this new bill?
We don’t.
Those who voted for it are appealing to the worst sentiments of their base while trying to curb our fundamental freedoms.
That’s why Gov. Evers must veto this bill.
(The bill in question is Senate Bill 296 and Assembly Bill 279.)