Adam Pitchel, Associate Member, University of Cincinnati Law Review
The First Amendment protects the freedom to express oneself through conduct.[1] Protests, rallies, and demonstrations typically bring together many people to collectively espouse their views and enhance the overall force of their message. However, the freedom of expression and by extension, the freedom to protest, is limited and subject to restrictions.[2] Regulations that constrain the freedom of speech are subject to intense scrutiny and usually implemented to protect public safety.[3] In these cases, legislators and judges must balance free speech rights against the possible consequences of that speech. Recently, protestors opposing the Dakota-Access Pipeline (DAP) obstructed several of the roads across the state and delayed traffic for several hours.[4] People have engaged in similar types of protests around the country for various reasons.[5] In response, the North Dakota Legislative Assembly introduced H.B. 1203, which states “notwithstanding any other provision of law, a driver of a motor vehicle who negligently causes injury or death to an individual obstructing vehicular traffic on a public road, street, or highway may not be held liable for any damages.”[6] State lawmakers have cited emergency concerns, traffic safety, and public orderliness as motivations for drafting this piece of legislation.[7] Unfortunately, this bill was poorly drafted and failed to adequately balance expressive conduct against public safety considerations.
Dangerous Drafting
HB-1203 absolves a driver that injures or kills an individual that is obstructing the road from any liability, provided that he or she struck the individual on accident.[8] This overly-broad language would excuse a wide variety of conduct that is not limited to the “obstructing protestor” context. For example, if an individual were stranded on a roadway due to a vehicular malfunction and was unable to move their car out of oncoming traffic, they would become an “obstruction” under this law. This is mainly because the bill makes no mention of an intent or mens rea requirement to obstruct a roadway. It simply provides blanket coverage to any driver that unintentionally injures anyone who is obstructing the road, regardless of whether they intended to obstruct the road.[9] Since the ultimate purpose of this legislation is directed toward discouraging protests on public streets, lawmakers would be wise to use language that is directed towards achieving that purpose. For example, changing the word “individual” to “pedestrian” would likely avoid the previously outlined scenario of the stranded motorist. The language outlining the liability exception refers to “individuals,” yet the bulk of the act is aimed at changing the relationship between pedestrians and roadways.[10] This change would improve the internal consistency of the bill. Also, one pedestrian or protestor is unlikely to cause a significant disruption on a public road or highway. Thus, if lawmakers required multiple obstructions on the road to invoke the protections provided by this bill, the bill would address the obstruction problem more directly.
Most importantly, legislators should consider adding a mental requirement on behalf of the obstruction. Adding this element would tailor the act to better achieve its purpose of discouraging disruptive protest locale. For example, a revised edition of the bill might read “a driver of a motor vehicle who negligently causes injury or death to an individual [that intentionally or recklessly] obstruct[s] vehicular traffic on a public road, street, or highway may not be held liable for any damages.” This small but significant change creates a more limited liability exception while leaving the bulk of tortious driver conduct undisturbed.
Missing the Mark
Protestors that obstruct roadways and delay traffic are undoubtedly disruptive. State lawmakers have expressed concern that these disruptions and delays can interfere with emergency responders. However, existing legislation already requires motorists and pedestrians to yield the right of way to emergency personnel.[11] Legislators have countered by pointing out that people experiencing personal emergencies are not given this luxury and are typically forced to accept delays in these situations. While this is a legitimate concern, this bill fails to properly balance this concern with the safety of protestors. Instead of allowing drivers to injure or kill protestors for any reason, perhaps legislators should consider making the presence of a personal emergency an element of the defense. A driver who negligently injures a pedestrian would be required, as a prima facie case, to provide evidence that he or she was in the midst of an emergency at the time of the accident. A jury could then balance this emergency against any injuries that were suffered by the pedestrian and award damages accordingly. Such a system would protect protestors from harm while simultaneously protecting drivers from liability during an emergency situation.
The bill’s sponsor, Rep. Kevin Kempenich, has also expressed concern about the responses of drivers who are quickly surrounded by protestors on a public road.[12] Specifically, he is worried about someone “hitting the gas rather than the brake” in these situations.[13] He would prefer to shift the responsibility of safety to people who choose to protest on public roads.[14] Such a shift would create a unique niche in the legislative history of the federal and state governments. In the North Dakota code, a separate provision states “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian and shall give warning by sounding the horn when necessary.”[15] This statement places the burden of pedestrian safety squarely upon the drivers, rather than the pedestrians themselves. If lawmakers in North Dakota choose to pass HB 1203, the language would conflict with ND 30-10-30 and any other law that assigns a duty of care to drivers of motor vehicles. While the ethics of this shift are certainly debatable, a better question is whether HB 1203 unduly restricts the ability of people to engage in expressive conduct.
An Alternative Time, Place, Manner Restriction
In order for a state or federal government to legally limit First Amendment rights, the restriction must usually be content-neutral, narrowly tailored to serve a significant governmental interest, and leave open alternative means of expression.[16] Since 1940, states have enacted laws that complied with these restrictions to limit parades, protests, and rallies.[17] In Clark v. Community for Creative Non-Violence, the Supreme Court upheld a ban that prohibited people from camping in a state park.[18] It determined that the government held a significant interest in protecting the park that exceeded the plaintiff’s right to engage in expressive conduct[19]. Instead of attempting to craft a similar bill that abides by similar requirements to limit protesting on public roads, the North Dakota legislature used a different tactic. The North Dakota legislature shifted the burden of safety from driver to pedestrian.[20] In doing so, they sought to use the fear of bodily injury or death to discourage protesting on public roads. Such discouragement of expressive conduct does not comport with the current jurisprudence that governs 1st Amendment issues.
In Near v. Minnesota, the Supreme Court held that any law preventing or restricting speech or conduct before it is spoken is presumptively invalid.[21] This prior restraint rule was partially applied in Bischoff v. Florida, where the court held that a state law prohibiting protests on public roads and highways was unconstitutionally overbroad.[22] The approaches used by the Florida and North Dakota legislatures to discourage public protests are different, yet the practical effects of both methods are the same. Here, instead of threatening protestors with fines or jail time, the North Dakota legislature threatened them with the possibility of serious injury without any judicial remedy. Both tactics attempt to discourage speech before it is spoken, thus implicating the prior restraint rule. It is unclear whether this law would violate the prior restraint rule. The connection between the statute and the speech it attempts to discourage might be considered too attenuated to declare the law unconstitutional.
Conclusion
HB 1203 is one of several attempts by state legislators to limit the disruptions caused by protestors. Other attempts include banning people from wearing masks while crossing public roads, permitting the state to sue the federal government to recoup policing costs, and strengthening public nuisance laws.[23] These tactics have had varying degrees of success, however North Dakota HB 1203 is likely to fail. There is a distinct possibility that passing this bill will attract a significant amount of negative publicity to the battle over the Dakota Access Pipeline. Since the creation of the DAPL is already a hotly contested issue, it is more likely that state legislators will not consider the possible benefits of this bill to outweigh the probable costs. Other attempts to limit protests in public areas that do not involve the legalization of serious injury or death are less contentious, put fewer people in danger, and can be better tailored to achieving the purported interest.
[1] U.S. Const. Amend. I
[2] Schenck v. United States, 249 U.S. 47, 52 (1919)
[3] Id.
[4] Ryan Miller, How the Dakota Access pipeline battle unfolded, USA TODAY (Dec. 2, 2016) http://www.usatoday.com/story/news/nation/2016/12/02/timeline-dakota-access-pipeline-and-protests/94800796/
[5] John Moritz, Free speech targeted in bills nationwide, critics say, USA TODAY (Feb. 2, 2017) http://www.usatoday.com/story/news/nation-now/2017/02/01/protesters-free-speech-targeted-bills-legislatures-nationwide/97338144/
[6] H.B. 1203, 65th Legis. Assemb. (N.D. 2017)
[7] Nick Smith, Motorist liability introduced in response to pipeline protests, BISMARCK TRIBUNE (Jan. 11, 2017) http://bismarcktribune.com/news/local/govt-and-politics/motorist-liability-introduced-in-response-to-pipeline-protests/article_27bfbbe1-40b3-53ab-a620-3b6e0225fb59.html
[8] H.B. 1203, 65th Legis. Assemb. (N.D. 2017)
[9] Id.
[10] Id.
[11] See N.D. Cent. Code. § 39-10-33.2 (stating “every pedestrian shall yield the right of way to the authorized vehicle”)
[12] Nina Agrawal, In North Dakota, it could become legal to hit a protestor with your car, LA TIMES (Feb. 3, 2017) http://www.latimes.com/nation/la-na-bills-protest-criminal-20170201-story.html
[13] Nick Smith, Motorist liability introduced in response to pipeline protests, BISMARCK TRIBUNE (Jan. 11, 2017) http://bismarcktribune.com/news/local/govt-and-politics/motorist-liability-introduced-in-response-to-pipeline-protests/article_27bfbbe1-40b3-53ab-a620-3b6e0225fb59.html
[14] Id.
[15] N.D. Cent. Code. § 39-10-30 (stating “every driver shall exercise due care to avoid colliding with any pedestrian”)
[16] Ward v. Rock Against Racism, 491 U.S. 781 (1989)
[17] Id.
[18] Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
[19] Id.
[20] Sonam Sheth, A new bill would protect drivers who ‘unintentionally’ hit Dakota Access protestors with their cars, BUSINESS INSIDER (January 26, 2017), http://www.businessinsider.com/north-dakota-bill-protects-drivers-from-law-if-they-hit-protesters-in-traffic-2017-1
[21] Near v. Minnesota, 283 U.S. 697 (1931)
[22] Bischoff v. Florida, 242 F. Supp. 2d 1226 (M.D. Fla. Jan. 2, 2003)
[23] John Moritz, Free speech targeted in bills nationwide, critics say, USA TODAY (Feb. 2, 2017) http://www.usatoday.com/story/news/nation-now/2017/02/01/protesters-free-speech-targeted-bills-legislatures-nationwide/97338144/
