Florida governor conflated 'black joy' with protest, judge says

6 minute read

Florida Gov. Ron DeSantis speaks during the welcome segment of the Conservative Political Action Conference (CPAC) in Orlando, Florida, U.S. February 26, 2021. REUTERS/Joe Skipper

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Sept 16 - A federal judge on Thursday blocked part of a sweeping anti-protest bill enacted by Florida Republicans and Governor Ron DeSantis, writing that officials’ reaction to peaceful protests in the summer of 2020 is akin to the unlawful racist backlash seen during 1960s protests against Jim Crow laws.

Chief U.S. District Judge Mark Walker in Tallahassee said that the governor made an embarrassing mistake – or worse – when his offices “conflated a community celebration of a federal holiday commemorating the end of slavery with a protest."

He issued a preliminary injunction blocking enforcement of the new definition of rioting under the Combating Public Disorder Act.

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DeSantis’ lawyers in defending the law had submitted to the court a Facebook post as evidence that Black Floridians continue to freely exercise their protest rights – except the flyer actually announced a “Black Joy" event celebrating America’s first official Juneteenth holiday.

Protesters' fears about the law are "well-founded" if the governor included the post "to imply that any gathering of Black people in a public space is a de facto protest," Walker said.

Florida’s law was enacted in April. It creates new definitions of rioting and incitement that allow the arrest of people simply for being at a protest where violence occurs. The law also eliminates bail, protects Confederate statues and makes it harder to reduce police budgets.

The Dream Defenders, Black Lives Matter Alliance of Broward and other groups allege the new law intentionally discriminates against Black-led civil rights organizations and unconstitutionally suppresses their speech based on their political views.

Members allege in the complaint they're already seeing diminished attendance at their activities because people are afraid of getting arrested.

Neither lawyers representing DeSantis nor his office responded to my questions before this column was published on Wednesday. After publication, Christina Pushaw, DeSantis' press secretary, referred me to DeSantis' Juneteenth proclamation. She added that there's a clear difference between peaceful protests and riots, which are violent by definition.

"This definition has nothing to do with race or ethnicity," Pushaw said. "Skin color does not predispose anyone to participate in political violence, and frankly, it's offensive to assume otherwise -- as your line of questioning seems to do."

At this stage, the only questions before Walker were whether Republicans' new definition is so broad that it likely violates political speech and protest rights, or so vague that it violates the right to understand a law before facing arrest for breaking it.

But Walker went a bit further.

The opinion repeatedly calls out DeSantis' office for shifting explanations of the bill and carefully parses the state’s position to indicate racial and political bias implicit even in its arguments defending the laws. The ruling demonstrates that courts can conduct a straightforward analysis of the “dog-whistle" evidence that often underlies race bias cases and establishes strong grounds for overturning copycat legislation that similarly threatens Americans' right to protest.

Nick Robinson, senior legal advisor at the International Center for Not-for-Profit Law, told me 106 bills “that undermine the right to peacefully protest" have been introduced in 37 states since George Floyd’s murder, which was followed by widespread protesting. He said the laws are generally targeted at protesters against racial injustice.

“The logic of this judgment applies to a lot of other bills getting introduced or enacted," Robinson said.

Walker begins by recalling two Black college students who were charged with “inciting a riot" in Florida in 1956, for protesting unlawful racism by refusing to leave the “whites-only" section of a city bus. He also references a group of clergymen who were arrested in 1961, also on riot charges, when they challenged Jim Crow laws at the Tallahassee Airport.

“What’s past is prologue," the judge wrote.

The anti-riot laws were used in Florida’s racist past to suppress activity threatening that status quo – even though it didn’t clearly define rioting. By 1975, the Florida Supreme Court decided that the term should be understood by its common-law definition: three or more people acting with common intent to violently disturb the peace.

At that time – and as alleged in this case – Black rights groups and their allies were still brutalized and arrested during mostly peaceful demonstrations, while white supremacist counter-protesters were generally given a pass for illegal, violent behavior.

In 1976, for example, a 450-person Ku Klux Klan rally paraded in Florida after Black students at a newly desegregated school protested its Confederate mascot, the New York Times reported that March. Students were shot and injured in “four hours of fighting," but police apparently charged only six teenagers. Florida lawmakers haven’t redefined rioting since that decade.

Florida's current law can be traced to statements from former President Donald Trump, who in June 2020 criticized U.S. governors’ response to the continuing Black Lives Matter protest movement, said Max Gaston, an ACLU of Florida attorney representing the advocacy groups.

DeSantis proposed the law in September 2020. The move came about two weeks after more than a dozen protesters were arrested in Tallahassee, according to the complaint and news reports. He signed it in April, a day before the Floyd murder trial verdict, which was expected to result in mass protesting.

In promoting the legislation, DeSantis referred to "anti-police" protesters and "rioting" in other cities, saying the law was meant to prevent that sort of violence and illegality. But the governor has also acknowledged that Florida demonstrations were largely peaceful – as were most other Black Lives Matter demonstrations nationwide. And reporting and research shows that rising right-wing protest activity is more violent. What's more, police are already three times more likely to intervene in Black rights demonstrations, according to the Armed Conflict Location and Event Data Project.

In his ruling, Walker points out in three separate passages that DeSantis flip-flopped on a key issue: His lawyers “argued at length in their papers that the new definition" of riot "merely mirrors" the common law, but “retreated from that position at the hearing."

DeSantis didn't clearly explain what constitutes participation or a violent public disturbance, Walker wrote. Instead, his lawyers answered that the statute simply prohibits participating in violent protests – which “begs the question" whether the governor thinks all protests are equivalent to public disturbances, the judge said.

DeSantis’ lawyers also included evidence of protests by other Black people and groups that aren’t party to the lawsuit, which prompted Walker to point out that the plaintiffs "are not before this Court representing all Black men and women" in Florida.

The court’s straightforward deconstruction of the state's arguments is powerful, and a similar analysis could prove tough to overcome in lawsuits challenging similar laws.

I asked Gaston why he thinks DeSantis’ offices made some of these missteps in its arguments.

“You need to make certain logical leaps when defending something that’s difficult to defend," Gaston said. “You just can’t do that without straining credulity, and ultimately you’ll probably make some errors."

(UPDATE: This column has been updated with comments from Governor Ron DeSantis' press secretary.)

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com