Part IV: Laws that Address Political Violence and the Right to Protest, and Additional Resources for Organizing
The backfire model stresses the importance of preparation by activists. Understanding relevant constitutional, federal, state, or local laws that address political violence should be seen as part of that preparation. In some cases, this knowledge can help you make more effective demands, leverage greater resources, fight devaluation and reinterpretation by perpetrators, engage in more impactful communications, and increase your impact if you choose to engage with government institutions.
In addition, understanding your constitutional rights to freedom of speech and freedom of assembly, among others, can also be part of your preparation for making PV backfire.
Maintaining an understanding of the government and legal environment is an ongoing task because laws and institutions change over time. Even in the last several years, new legislation related to political violence, as well as rights to protest, have been adopted and new mandates and practices have been established within various levels of government.
There are also many allied organizations and groups that work to uphold democracy and counter PV. These groups issue resources on topics ranging from de-escalation techniques, to new research findings, to tools for shaping narratives and messaging. Numerous groups also issue policy and practical recommendations on how they think governments can more effectively counter political violence. Knowing these recommendations can help you formulate possible demands or advocate on behalf of people who are facing threats.
Links to resources on government laws and the work of allied organizations are included in this section. However, the lists below are just a sampling—there are far more resources than can be included here, and new ones are created regularly. In addition, the mention of various resources or organizations below does not connote endorsement of all of their content and recommendations. Rather, they are presented here as information sources that groups may wish to review.
CONSTITUTIONAL AND FEDERAL LAWS ADDRESSING POLITICAL VIOLENCE AND INTIMIDATION
There are many laws that address violence in general our society, and these can also apply to political violence. In addition to general laws addressing violence, below are references specifically tailored to address political violence and intimidation.
The Brennan Center for Justice offers a Voter Intimidation and Election Worker Intimidation Resource Guide of federal and state laws that protect voters and election officials from threats.⁶² They also have a page with a list of federal laws protecting against intimidation of voters and election workers, which includes examples of prohibited behaviors, such as improperly following or monitoring voters at polling places, or threatening dissemination of voters’ personal information.⁶³
The International Center for Not-for-Profit Law (ICNL) has a briefing on “Regulatory options to protect peaceful assembly from the threat posed by firearms.”⁶⁴
The Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center offers numerous legal fact sheets or guidance on a number of issues related to PV, intimidation, and other abuse:
Protecting against voter intimidation (also available in Spanish).⁶⁵
The “Constitutional Sheriffs” movement and the limits on sheriffs’ authority to involve themselves in election administration.⁶⁶
Limits of First Amendment protection of threats and incitement to violence.⁶⁸
Other issues related to countering political violence at elections and polling places.⁶⁹
“Countering Bigotry and Extremism in the Ranks: A First Amendment Guide for Law Enforcement Agencies.”⁷⁰
STATE LAWS ADDRESSING POLITICAL VIOLENCE AND INTIMIDATION
The Brennan Center for Justice offers lists of laws protecting against intimidation of voters and election workers in the following states:
They also issued a Voter Intimidation and Election Worker Intimidation Resource Guide of federal and state laws that protect voters and election officials from threats.⁷²
ICAP at Georgetown University Law Center has published fact sheets on unlawful militias in all 50 states.⁷³ These “provide key information about lawful and unlawful militias, state laws prohibiting private militias and paramilitary activity, and what to do if citizens see groups of armed individuals near polling places.”⁷⁴ The fact sheets can be downloaded individually or as part of a comprehensive report.⁷⁵
ICAP has also created factsheets related to the “Constitutional Sheriffs” movement and laws regarding the authority of sheriffs and the administration of election laws in:⁷⁶
CONSTITUTIONAL AND FEDERAL LAWS RELATED TO RIGHTS TO PROTEST AND PUBLIC SAFETY
The American Civil Liberties Union (ACLU) offers a “Know Your Rights” page related to protesters’ rights in English and Spanish, with practical guidance on organizing protests, attending protests, taking pictures or video at protests, and understanding your rights if you are stopped by police while protesting.⁷⁷ It also includes steps on what to do if you believe your rights to protest are being violated. ACLU also offers a page providing a wide range of information on rights of protesters.⁷⁸
ICNL offers a list of reforms that were introduced or enacted after June 2020 to protect freedom of assembly in the United States. Topics include:
Topics also include reforms to public order laws, repeals of laws against masking your face, and requirements that law enforcement must prominently display identification (name, badge number, and agency).⁷⁹
ICAP at Georgetown University Law Center published Protests & Public Safety: A Guide for Cities & Citizens to help “local jurisdictions understand their role in fostering First Amendment activity while protecting the safety of protesters and the public.”⁸⁰ The guide contains:
… legal principles, best practices, and creative solutions upon which local jurisdictions may draw to protect public safety while respecting constitutional rights during rallies, protests, and other public events. The toolkit offers detailed legal analysis suitable for municipal and state attorneys, as well as more general legal guardrails, best practices, and frequently asked questions intended to be more easily accessible to non-lawyer elected and appointed officials, concerned residents, and activists.⁸¹
They also created a Frequently Asked Questions (FAQs) fact sheet about protests and public safety and guidance on Protecting Public Safety and Free Expression on Campus and Protecting Pride Events from Armed Extremist Activity.⁸²
STATE AND LOCAL LAWS RELATED TO RIGHTS TO PROTEST AND PUBLIC SAFETY
While the US Constitution supports a right to protest, state and local laws also impact protest rights (for example, states can have different definitions of when a protest may be defined as an “unlawful assembly” or a “riot,” and different laws governing potential liability for protesters; various localities have differing permitting requirements). It is important to check with local attorneys or officials about laws that may affect protest activity where you are.
Some states have also made efforts to limit protest rights, and recent protest legislation in states across the US is tracked online and analyzed by the International Center for Not-for-Profit Law (ICNL). ⁸³
POLICY AND PRACTICAL RECOMMENDATIONS RELATED TO COUNTERING POLITICAL VIOLENCE
Numerous organizations offer policy and practical recommendations to counter political violence, and related phenomena such as disinformation. Some of these are listed below (although by listing these, this guide is not endorsing any particular recommendations).
The Committee for Safe and Secure Elections
The Brennan Center for Justice
Election Officials Under Attack: How to Protect Administrators and Safeguard Democracy⁸⁵
Intimidation of State and Local Officeholders: The Threat to Democracy⁸⁶
How States Can Prevent Election Subversion in 2024 and Beyond⁸⁸
The McCain Institute and the Center for American Progress
Institute for Strategic Dialogue
Carnegie Endowment for International Peace
ADDITIONAL RESOURCES
De-escalation Training and Techniques
The Bridging Divides Initiative has written resources on de-escalation techniques for government officials and election and poll workers. They also have links to de-escalation and active bystander trainings and resources in all 50 states.⁹⁴
They further include links to de-escalation resources for community members & volunteers (created by the DC Peace Team) and de-escalation guidance for law enforcement (created by the Crime and Justice Institute). ⁹⁵
The US Government’s Cybersecurity and Infrastructure Security Agency (CISA) includes de-escalation resources in English, Chinese, French, Korean, and Spanish.⁹⁶
The Cybersecurity and Infrastructure Security Agency has a Non-Confrontational Techniques for Election Workers training video.⁹⁷
Physical Safety
The US Election Assistance Commission has a comprehensive page covering numerous security topics related to election officials.⁹⁸ Some of the resources may also be relevant to other individuals working outside of elections as well. Topics include:
Defining Common Threats and Harassment.
The Elections Group produced the guide Running Elections Without Fear: Ensuring Physical Safety for Election Personnel, which focuses on a range of security aspects, including how to build relationships with and engage with law enforcement.⁹⁹
Online Safety
The US Election Assistance Commission offers short resources on:
The organization PEN America offers an extensive free field manual on how to protect against many forms of online harassment and abuse.¹⁰² The manual addresses how to prepare, respond, practice self-care, evaluate possible legal options to address abuse and harassment, and to ask for support when needed. It is available in English, Arabic, French, Spanish, and Swahili.¹⁰³
Security Positive and the Elections Group developed a guide on online safety for election officials: Defending Democracy: Protecting Election Officials from Digital Threats.¹⁰⁴
Self-care
The Carter Center has produced a self-care guide for elections officials: Taking Care of Yourself to Serve Others: A Well-being Resource Guide for Elections Officials.¹⁰⁵
Communications, Narrative, and Messaging
Project Over Zero has several guides on communicating during times of potential or actual political violence:
Footnotes
⁶² Katie Friel and Jasleen Singh, “Voter Intimidation and Election Worker Intimidation Resource Guide,” Brennan Center for Justice, October 28, 2022
⁶³“ Federal Laws Protecting Against Intimidation of Voters and Election Workers,” Brennan Center for Justice, October 28, 2022.
⁶⁴“ Keeping Guns Away from Protests,” International Center for Not-for-Profit Law (ICNL), February 2022.
⁶⁵ English: “Fact Sheet: Protecting Against Voter Intimidation,” Institute for Constitutional Advocacy and Protection (ICAP), Georgetown Law; Spanish: “Protección contra la intimidación de los votantes.”
⁶⁶ “Fact Sheet: ‘Constitutional Sheriffs’ and Elections,” ICAP.
⁶⁷ “Video Recording In or Near Polling Places,” ICAP.
⁶⁸ “Fact Sheet on Threats and Incitement to Violence Related to the Election,” ICAP.
⁶⁹ “Guidance Related to Elections and Polling Places,” ICAP.
⁷⁰ “Countering Bigotry and Extremism in the Ranks: A First Amendment Guide for Law Enforcement Agencies,“ ICAP.
⁷¹ All state fact sheets: “Laws Protecting Voters and Election Workers from Intimidation,” Brennan Center for Justice.
⁷² Friel and Singh, “Voter Intimidation.”
⁷³ “State Fact Sheets,” ICAP.
⁷⁴ “Fact Sheets on Unlawful Militias for All 50 States Now Available from Georgetown Law’s Institute for Constitutional Advocacy and Protection,” ICAP, Press Release, September 22, 2020.
⁷⁵ Prohibiting Private Armies at Public Rallies, 3rd edition (Washington: ICAP, 2020).
⁷⁶ All state factsheets are downloadable here: “‘Constitutional Sheriffs’ and Elections,” ICAP.
⁷⁷ English: “Know Your Rights: Protesters’ Rights,” ACLU; Spanish: “Derechos de los manifestantes.”
⁷⁸ “Rights of Protesters,” ACLU.
⁷⁹ “Reforms Introduced to Protect the Freedom of Assembly,” ICNL.
⁸⁰ Protests & Public Safety: A Guide for Cities & Citizens (Washington: ICAP, 2020).
⁸¹ Protests & Public Safety.
⁸² “Frequently Asked Questions,”Protests & Public Safety; “Protecting Public Safety and Free Expression on Campus,” ICAP; “Guidance: Protecting Pride Events from Armed Extremist Activity,” ICAP.
⁸³ Jonathan Pedneault, “US States Take Aim at Protesters’ Rights,” Human Rights Watch, February 16, 2021; “US Protest Law Tracker,” ICNL; “Analysis of US Anti-Protest Bills,” ICNL.
⁸⁴ “Providing Safety and Security to Elections and Election Workers,” Committee for Safe and Secure Elections.
⁸⁵ “Election Officials Under Attack,” Brennan Center for Justice, June 16, 2021.
⁸⁶ Gowri Ramachandran, Chisun Lee, Maya Kornberg, Kimberly Peeler-Allen, Ruby Edlin, Julia Fishman, Jiyoon Park, and Grady Yuthok Short, Intimidation of State and Local Officeholders: The Threat to Democracy (Washington: Brennan Center for Justice, 2024).
⁸⁷ Derek Tisler and Lawrence Norden, Securing the 2024 Election (Washington: Brennan Center for Justice, 2023).
⁸⁸ Alice Clapman, How States Can Prevent Election Subversion in 2024 and Beyond (Washington: Brennan Center for Justice, 2023).
⁸⁹ Sean Morales-Doyle, Robyn Sanders, Allison Anderman, and Jessica Ojeda, Guns and Voting (Washington: Brennan Center for Justice, 2023).
⁹⁰ Katrina Mulligan, Brette Steele, and Simon Clark, A National Policy Blueprint to End White Supremacist Violence (Washington: Center for American Progress, 2021).
⁹¹ Cécile Guerin and Eisha Maharasingam-Shah, Public Figures, Public Rage: Candidate Abuse on Social Media (London: Institute for Strategic Dialogue, 2020).
⁹² Bateman and Jackson, Countering Disinformation Effectively.
⁹³ Rachel Kleinfeld, Five Strategies to Support US Democracy (Washington: Carnegie Endowment for International Peace, 2022).
⁹⁴ “Elevating De-Escalation and Community Safety Approaches,” Bridging Divides Initiative.
⁹⁵ DC Peace Team, “Active Bystander Intervention and De-Escalation,” Bridging Divides Initiative; “Guidelines for Law Enforcement Role at Public Meetings: Communication & De-Escalation Planning,” Crime & Justice Institute.
⁹⁶ All language versions are available here: “De-Escalation Series Translations,” Cybersecurity & Infrastructure Security Agency.
⁹⁷ “Non-Confrontational Techniques for Election Workers Training,” CISA, YouTube video, October 12, 2022.
⁹⁸ “Election Official Security,” US Election Assistance Commission, April 25, 2024.
⁹⁹ The Elections Group, Running Elections Without Fear: Ensuring Physical Safety for Election Personnel.
¹⁰⁰ “Cybersecurity Best Practices,” US Election Assistance Commission, April 25, 2024.
¹⁰¹ “Memo: Removing Personal Identifying Information (PII) from a Google Search,” US Election Assistance Commission, June 2022.
¹⁰² Online Harassment Field Manual, PEN America.
¹⁰³ All translated version are available here: https://onlineharassmentfieldmanual.pen.org/
¹⁰⁴ The Elections Group, Defending Democracy: Protecting Election Officials from Digital Threats.
¹⁰⁵ The Carter Center, Taking Care of Yourself to Serve Others: A Well-being Resource Guide for Election Officials.
¹⁰⁶ Over Zero, Communicating During Contentious Times: Dos and Don’ts to Rise Above the Noise.
¹⁰⁶ Over Zero, “Guidance on Reporting During Contentious Times.”
¹⁰⁸ Over Zero, A Refresher on Narratives & Violence.
¹⁰⁹ Over Zero, “2. Design Process and Tools.”