HB 1 erects hurdles to free speech in Florida, but with bold action, they can be dismantled | Opinion

This week, Florida Gov. DeSantis signed the controversial legislation HB 1 into law. He was surrounded by law-enforcement official. That there seemed to be no diverse people present should speak toward his broader intentions.

This law is probably one of the most regressive attacks on free-speech in the country. That said, where does that leave organizers who want to put stage protests around a variety of issues, including social justice, reproductive rights or gun violence?

This law, no doubt, will be challenged on constitutional grounds. The path to change, however, will include someone getting arrested to give them the ability to be a plaintiff in a lawsuit. People will need to lobby the Legislature in the next session to create a new piece of legislation to undo this law. Organizers will need to be well-versed on the law — making clear pronouncements on social media and any materials advertising a protest that this will be a nonviolent protest and that they do not condone violence. Usually that does not need to be said, because the vast majority of protest organizers promote nonviolent actions. But in the context of this new law, more precautions will need to be taken.

The law’s implementation is going to land squarely on the shoulders of police chiefs and elected prosecutors — who will play the most pivotal role. Line prosecutors will have to analyze whether the facts of a particular situation meet the definitions of the enhanced charges that were put in place by this new law. It will be up to prosecutors to ensure that there is not disparate enforcement of this law.

Elected prosecutors can make bold statements saying that they will not prosecute people for exercising their First Amendment rights. The main concern is the people who may come to a protest and act violently, but not at the behest or encouragement of organizers. It will be an uphill battle to prove that organizers willfully encouraged people to “riot.” We’re seeing the difficulty of such investigations as we examine the fallout Jan. 6 insurrection at the Capitol in Washington, D.C.

A prosecutor also will have to educate law-enforcement as to which facts will rise to the level of these newly formed charges. For instance, the Miami Beach Police Department charged a young man with inciting a riot because he played his portable stereo on Ocean Drive during spring break, resulting in other people dancing. This is a clear problem when it comes to enforcing this law — officers need to understand what statutes apply and when.

HB 1 is yet another hurdle on the path to racial justice and equality. With planning, education and bold action, the right to protest can still be preserved in Florida.

Melba Pearson is director of policy and programs at the Center for the Administration of Justice at FIU.

This story was originally published April 20, 2021 at 8:46 PM.