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Trump’s rhetoric and actions aren’t the only threat to democracy⁠—state legislatures are also pushing for limits on the right to protest.

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This is a rush transcript and may contain errors. It will be updated.

Marc Steiner: Welcome to The Real News. This is Marc Steiner, and it’s great to have you all with us once again.
Every day, there are new signs that our right to free speech, that freedom of the press we hold so dear, our right to assembly, our rights to protest and speak our minds, are being undermined and threatened by the Trump administration and state governments around the country. Last Thursday, Trump signed an executive order that would eliminate legal immunity for social media companies like Twitter, who he’s angry at. It seems to be completely illegal.

Since the 2016 election, our guests, as you’ll find out in a moment pointed out in her Atlantic article, that the anti-protest legislation has grown exponentially, over a hundred bills introduced, 23 passed, inside of state legislatures. Armed protesters are treated with kid gloves and lauded by the President, when he talks about shooting looters and calling out the US army to stop protesters, in the wake of the death of George Floyd.

We’re joined today by Nora Benevidez to discuss the threat towards civil liberties or democracy, and how we address it. She’s director of the US Free Expression Programs for Penn National here, which is part of Penn International, and joins us to talk about these issues that we all face. Nora, welcome to The Real News. Good to have you with us.

Nora Benavidez: Hi, Marc. Thank you.

Marc Steiner: Always a pleasure to talk to you. So let’s open this tweet that you had that was put out by The Atlantic about your article. The tweet was, “The First Amendment is no good if it is used protect one side of the political spectrum, but disregarded by the other.” So let’s talk a bit about what we’re facing in a larger scale here.

I mean, your piece, [inaudible 00:01:34] it’s weighed on the state legislatures, which is where the rubber meets the road, in some levels, when stopping protests. But the reality is that there’s this overarching push at this moment that leaks out, or a real threat, to what we’ve come to expect to be our every day rights. So outline that for us, in terms of your work.

Nora Benavidez: Absolutely. Well, it’s great to be here. You know, I think one of the things we’re seeing is that there is sort of a narrative shift. And protest is seen as criminal, but only if you’re exercising it and promoting certain views.

I thought back at the very, very beginning of these protests and the movement in the wake of the killing of George Floyd. I thought through how anti-lockdown protests were viewed, and the way they were treated back in April and in May, and how different we’re seeing law enforcement reactions now.

And of course, there are always these counterarguments where people say, “Well, there’s violence,” but most of the protests that are happening, and a lot of the protesters are marching and exercising protected First Amendment rights. And they’re being met with tear gas, rubber bullets, journalists are being attacked and sought out by law enforcement, and arrested, in these sweeps to pull them away from reporting.

And I think that, when we compare it with what happened during the anti-lockdown protest, we’ve seen generally very little that law enforcement did to crack down, or even try to limit what people were doing during that phase. And so, it just seems to point to, at a higher level.

We can get into the legislation and the trends that we’ve seen in our PEN America report. But at a very high level protest is criminal, if you’re promoting certain views. And if you are dissenting, if you are black, Indigenous or another person of color, so much of what we’ve witnessed is this really targeted assault on First Amendment rights.

Marc Steiner: So I want to start with this one piece, because I think it’s emblematic of what were the dangers that we’re facing at the moment. I mean, and this is not the heart of your discussion. I just want to start here, and we’ll get into the heart of what you’ve been talking about and writing about, and with the report that PEN released.

But when you see President Trump attacking Twitter, after they fact checked him, and saying that they have unchecked power, and that he’s going to limit their right to not be held liable for things that are said on Twitter, which is, it resists section 230 of the Communications Decency Act, which he’s trying to use, but it’s actually the opposite of that.

And so, when you see that, because it becomes, it ends up becoming this popular will of the people who support him, that he speaks to with this. And therein lies the danger to me, is that we are facing this serious authoritarian tendency.

Nora Benavidez: Absolutely.

Marc Steiner: And I don’t like to use the word “fascist,” because that’s supposed to be specific about a political regime, but there’s increasing authoritarian tendencies. And I think this is, that’s why this, to me, is so dangerous, because of how it’s happening, and where it’s coming from.

Nora Benavidez: Absolutely. I mean, we live in a democracy, or we purport to, where our elected officials represent us, and where they represent and participate in democracy, by representing our views. And we’re now in this phase of a completely undermined authority.
We have a leader that is targeting truth, I think, that is targeting, then, the ability for people to promote ideas, and to really just connect with each other in that marketplace of ideas. That’s what our platforms and social media do.

They open up space for people and in the President’s moves to yet again, try to limit, or decide what is allowed on those sites, it’s really just kind of a double down of tactics we’ve seen him display over the last several years, and even before his presidency.

As President, we know, for example, that part of what he’s done is target reporters, when he dislikes their coverage. He removes people from press briefings. The administration generally has a antagonistic view, where they denigrate reporters and coverage, which somehow portrays the administration in ways that it does not like.

That really is this permeating tone towards anything that is dissenting, that anything that tries to unearth a story that the administration and leaders do not want, they try to censor it, which is frankly Authoritarianism 101. That is sort of that precursor step that we’ve seen in other contexts.

As an organization that monitors that slow, slow step away from democracy, we’ve been really troubled by the issues and the practices, and frankly, the rhetoric in this country. And the executive order, I think, is just one example, where I’m not even sure it’s exactly enforceable as an executive order, but it also just begs the question of, what are our leaders doing?

And it’s hard. I really think that Trump is succeeding in trying to create his own narrative, a narrative that undermines truth, and really undermines our shared ability to agree on things, which is, I actually think, at the heart of it, the underpinning of our democracy.
If you and I are not able to connect over the most basic issues, the most basic truths and the foundation of society, we’re not going to be able to vote on our candidates that are running for office. We’re not going to be able to then think about what we actually believe in, because everything is suffering from a lack of, and an undermined, credibility.

Marc Steiner: I want to talk about how some of the things are connected here, that are happening to us, that you wrote about in your article in the Atlantic, and also the PEN Report.

Nora Benavidez: Yeah.

Marc Steiner: But let me start with PEN International and PEN America for a moment. I mean, this is an organization that has been, that over the decades, has been fighting for freedom of speech and freedom of the press across the globe. And I’m very curious, and I think many of our viewers would be very curious, about the conversations that may be taking place with you, among you now, here in this country and around the world, when you all of a sudden have to focus on the United States.

I mean, when the organization first was set up, it was wanting to focus on all authoritarian regimes around the country, around the world and what was happening, but those focal points are here in our country, allegedly the world’s greatest democracy. And that, to me, is just very telling, and extremely chilling.

Nora Benavidez: Well, we were founded, I think back at how corny it sounds, we were founded almost a hundred years ago, and it was right after World War One. I remember writers really came together all over the world, concerned about how words would be used, how words could be weaponized, whether that is censorship of writers and opinions, or the use of propaganda.

And frankly, everything that those writers and our founders were concerned about, I think, we’re seeing play out again and again and again. And it’s been almost a hundred years, and those issues, whether it’s disinformation, whether it is dissent and dissidence, it’s. Frankly, the same issues. And so, I’m very proud, frankly, to be able to defend free expression.

From our membership base, we see people who are just exhausted by the assault on truth. And we want to engage with them as much as possible, to try to bring together and create a moment of solidarity where we can. Because I think it’s just, it’s a very painful, painful moment.

Marc Steiner: Let’s just dive into some of that. I mean, one of the things you talk about a lot in your article, and the PEN Report, have to do with all the laws that have been enacted around the country by state legislatures over the last several years, that really limit protests and speech.

And you’re seeing it now also being played out in the demonstrations that we’re seeing, with the kind of violent reaction that they’re getting, even to the nonviolent protest. So I mean, so what exactly has been happening in these last four years that may be flying under the radar, that most of us don’t see around the country?

Nora Benavidez: Well, it’s a great question. I remember from the outset of the report, we’ve known that targeting of activists is often an issue. And certainly, we’re building on years of looking at how journalists are targeted, and what kinds of voices get silenced. But I noticed, in a very informal way, slowly, that I was seeing more and more and more bills being proposed across our country that are trying to limit protest rights.

Frankly, from the outset, we did not want to assume that that was politically motivated. And we started by analyzing bills introduced across the country in 2015. Frankly, in 2015 and 2016, there were very few bills proposed at all that would limit protest rights.

Then, in 2017, following Trump’s election and his becoming President, and then many state legislatures flipping and turning red, where they were Republican majority, we saw a surge of dozens and dozens of bills proposed at the state level, that really seemed inspired by recent protests.

What we’ve found is that there are over a hundred bills, 116 total, that have been proposed over the last five years, all of which target our protest rights. And often legislators are pretty candid in saying that they introduce these bills, inspired by recent events, targeting protests, which really begs the question of, “Well, what is their role, and why are they introducing these other than, or if only to, chill our First Amendment rights?”

Marc Steiner: I mean, and it’s not something to just take lightly. I mean, one of the things that’s pointed out by PEN is that since this has been happening, 14 protestors and one journalist were arrested, under the provisions being passed for these various state governments. And so this is just beginning.

And when you tie that to the President of United States, saying in a Tweet, that Minneapolis protestors were thugs and what he said in his other places, “knock the crap out of demonstrators,” but then talking about the very good people that were walking in armed to state capitals. I mean the juxtaposition of those things, is glaring, at best.

Nora Benavidez: Well, let me break … I agree. I totally agree. And let me break down a couple of things that we observed.

Marc Steiner: Please.

Nora Benavidez: Some of the key findings, if you will. Again, we really wanted to start by assuming it was not politically motivated, and not really targeting certain protest movements. But unfortunately, out of the 116 bills that we analyzed, the great majority are really introduced in the wake of highway protests that are led by black activists and Black Lives Matter, and then bills that criminalize protests around pipeline or other construction sites, which we know are motivated by Dakota pipeline protests.

And so, when you look at the totality of these bills, that is over 60 bills, for example, that just criminalize minority-led movements. And it really seems to highlight that protests happen, and then legislators introduce bills to target those protesters.

Over and over again, we’ve really seen this conclusion in all of our findings, that protests happen. And then, especially in the states where there are massive demonstrations, Minnesota, Missouri, North Dakota, those also then have the highest number of bills that are getting introduced. And frankly, not all of these bills pass.

That is something that we try to reiterate over and over in the report. Out of 116 bills, only 23 have become law, and only two of those have been challenged legally. And so what we’re facing is a few things.

I think, one, we’re seeing that it’s really hard to challenge these bills. So many of them are kind of okay constitutionally, that they might pass muster. And we’re just not sure how they’ll get applied.

We also see that given that so many bills get introduced, even if they don’t become law, I think there is this effort on the part of legislators to just create that narrative, that protest is criminal.

So many of these bills are redrawing the line of what’s acceptable or lawful protest. So if you are in a protest of more than 15 people, that could potentially in some states now be seen as a riot, or as unlawful conduct.

That is absolutely antithetical to our First Amendment. It’s antithetical to years of cases and precedent where we know that our rights, to march, to demonstrate, are all protected by the First Amendment. And so, when we see bills getting introduced, dozens of them, that let’s say, criminalize people marching on a highway, well, one, we’ve seen legislators admit that they introduced these to target protestors.
We already have criminal statutes on the books. We have highway obstruction as a misdemeanor charge. And so it’s just creating this chilling effect, targeting protesters, and targeting specific protestors.

Marc Steiner: So you have that in concert with a couple of things going on here. And I think they’re connected. I mean, when you have a Donald Trump calling out the US Army in Washington, DC, and threatening to do so in States and the argument being played out now, whether or not that’s even legal, is it legal or isn’t it legal, with Posse Comitatus, or is it the Insurrection Act of 1807, 1871, and how those two play, how those play into this, what that legal argument might mean, and you see that happening, and actually, these cases being challenged.

And now, over one third of the federal judgeships have been named by the most right wing conservative legal minds in this country, given the names of Donald Trump, who appoints them to a court, and the Senate approves them. So I mean, there’s a real intersection here, I think, that I think Americans need to be aware of.

Nora Benavidez: Absolutely. And a colleague of mine equated it to voter suppression, that this happens slowly.

That over time, the whittling away of our constitutional rights is something that happens often when we’re busy, when we’re marching, for example, or where, in the middle of a pandemic, we are not able to actually go to our state capital, potentially, and voice concern or upset or hold our legislators accountable.

And so, under that cover of, frankly, the pandemic and everything we’re seeing here, it really kind of, at least leads me to be concerned that, over the next several years, we’re going to continue seeing this assault on the right to protest.

I’ve already noticed that at least one governor has talked about the need to introduce bills to continue to target protesters in 2021. And so it’s sort of like, in a very surreal, prescient way, looking at what we’re doing now, and will that lead to potential future efforts to crack down on protesters?

And so, we need to be vigilant and think through what are the consequences, if we don’t have legislators that are really representing us?

Because there are some actually fantastic legislators, some that we mentioned in the report that have been marching with protestors, that say, “If this bill passed, I would have been thrown in jail and prosecuted.”

Those are the things that we need to be spotlighting, highlighting with our colleagues, highlighting with allies. I think the other element, though, in all of this, is that narrative piece that I’ve brought up.

We’re seeing more disinformation than ever surrounding the protests, where there is so much confusion already surrounding, do I attend a protest? What are the ramifications in a pandemic context? And what we’re seeing are people, bad actors promoting fake protests, encouraging people to come out where protests are not happening.

We’re seeing photos and videos taken from years ago, or in different countries. And they’re being appropriated and made to seem like those are protests happening now and they’re violent. And so, it’s really this perfect storm, where we’re confused.

People are upset, wanting to come out, and come together. And yet is just this, we’re riddled with a false and misleading narrative that what’s happening is criminal. And we need to unpack that. And frankly, I think it’s a misconception so much of the time, where journalists doing their job should not be arrested.

Protesters who are peaceful, who are even filming other protesters, and begging them to not be violent, those people should not be arrested. And yet the kind of online narrative that we’re seeing is just that this is, it warrants the kind of over militarized reaction from local, state and federal law enforcement.

Marc Steiner: Let me just finally ask you this, then, Nora. I’m curious, what are PEN or other groups going to, or what are you doing, in terms of countering this? And what are you suggesting people do, and organizations do?

Nora Benavidez: Well, one, I think, frankly, please read the report. Because I have seen a dearth of information and resources that actually point out these lopsided First Amendment rights.

If we know that legislators are doing this, we are that much more, better positioned in 2021 to fight these types of proposals. And where there will be proposals, because I am sure they will crop up in 2021, we’re ready to fight back against them, but we want to do that with local partners.

And so, in the various states that we’ve seen bills introduced, we’re monitoring the situation, we’re looking at, how can we maximize that redo and the recrafting of a narrative here, that protest is not inherently criminal? That means engaging with legislators, trying to educate them about that, educating them about the very serious costs of introducing bills that are unconstitutional, and then working with our allies in various cities and States.

Right now, I think there’s a moment where, frankly, I’m glad our report is out in the world, but there are much bigger issues. And we’re trying to listen and hear from our partners, hear what people are wanting and needing. And I think when it comes to the legislative and policy issues, we’re ready to fight back, and try to challenge those problematic and unconstitutional bills.

Marc Steiner: It’s been a really interesting conversation. We’ve been talking with Nora Benavidez, who is the Director of US Free Expression Programs with PEN, and talking about that new report that came out, that we will be linking to, as well, because it’s something we all have to read and understand, and know where we’re going, arresting dissent, legislative restrictions on the right to protest.
All of it should take a look at that and read it and think about it. And once again, Nora Benevidez, thank you so much for joining us. It’s a pleasure to have you with us.

Nora Benavidez: Thanks, Marc.

Marc Steiner: And I’m Marc Steiner here for The Real News Network. Let us know what you think. Take care.

Studio: Will Arenas
Production: Will Arenas

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Host, The Marc Steiner Show
Marc Steiner is the host of "The Marc Steiner Show" on TRNN. He is a Peabody Award-winning journalist who has spent his life working on social justice issues. He walked his first picket line at age 13, and at age 16 became the youngest person in Maryland arrested at a civil rights protest during the Freedom Rides through Cambridge. As part of the Poor People’s Campaign in 1968, Marc helped organize poor white communities with the Young Patriots, the white Appalachian counterpart to the Black Panthers. Early in his career he counseled at-risk youth in therapeutic settings and founded a theater program in the Maryland State prison system. He also taught theater for 10 years at the Baltimore School for the Arts. From 1993-2018 Marc's signature “Marc Steiner Show” aired on Baltimore’s public radio airwaves, both WYPR—which Marc co-founded—and Morgan State University’s WEAA.