Reforms Introduced to Protect the Freedom of Assembly

Policymakers have many options available to better protect the freedom of peaceful assembly. In the wake of criticism about law enforcement’s response to nationwide racial justice protests in 2020, policymakers at the local, state, and federal levels have proposed and enacted reforms to better protect the rights of protesters. Policymakers have also considered reforms to address the increasing problem of armed individuals at protests intimidating and endangering protesters. This resource page provides examples of some of these reforms.

The reforms discussed below have been introduced or enacted after June 2020. They are not necessarily best practices, but they represent important efforts to better protect assembly rights.

Click below to explore each issue:

George Floyd protests in Columbus, Ohio (Photo: Paul Becker/Wikimedia), reforms protecting freedom of assembly.

Restrictions on Less Lethal Weapons

When used in the context of protests, certain types of less lethal weapons, like tear gas, rubber bullets, and sonic weapons, are indiscriminate by their very nature. These weapons should never be used in the context of First Amendment assemblies. For an analysis of the most common types of reforms and recommendations on restrictions regarding these weapons, see ICNL’s briefer on Legislative Options to Restrict the Use of Less Lethal Weapons in Crowd Control. Click below to learn more about reforms introduced in different jurisdictions.

Tear Gas and chemical irritants

The 1925 Geneva Protocol and the 1994 Chemical Weapons Convention prohibit the use of agents like tear gas in warfare, yet they remain a tool for many US law enforcement agencies. When deployed via large-scale canisters or through grenades, tear gas and other chemical irritants such as pepper spray can do indiscriminate harm, and as such are an inappropriate response to protests.

INITIATIVES PROHIBITING OR RESTRICTING THE USE OF CHEMICAL IRRITANTS AT PROTESTS

Proposed:

Enacted:

Expired/Did Not Pass:

Rubber bullets and other “less lethal” kinetic projectiles can cause serious physical and psychological harm. They should never be used to control crowds at a demonstration.

INITIATIVES PROHIBITING OR RESTRICTING USE OF KINETIC ENERGY PROJECTILES AT PROTESTS

Proposed:

Enacted:

Expired/Did Not Pass:

Long Range Acoustic Devices (LRADs), or “sound cannons,” can be used as a sonic weapon by emitting loud and painful levels of noise that can cause long-term hearing loss. Human rights advocates have called for a suspension on their use to police crowds until their effects are better studied.

Restrictions on Guns at Protests

Armed individuals intimidate and discourage people from exercising their rights to speech and assembly. The presence of guns at protests also poses a very real threat to public safety, including of demonstrators. For an analysis of reasonable and constitutionally-sound restrictions that can be used to limit firearms at protests, see ICNL’s briefer Keeping Guns Away from Protests: Regulatory Options to Safeguard the Right to Peaceful Assembly. Click below to learn more about reforms introduced in different jurisdictions.

initiatives restricting guns at or near protests

Banning firearms at protests is a straightforward way to address the problems posed by armed individuals at protests. For instance, Washington, DC prohibits firearm possession at all public gatherings and special events, including permitted protests. Authorities may also ban firearms from a designated area that is within 1,000 feet from a public “demonstration,” which is broadly defined and need not have a permit. Maryland has a similar prohibition on firearm possession within 1,000 feet of a public demonstration. States that are considering or have recently enacted similar restrictions include:

GOVERNMENT BUILDINGS AND THEIR GROUNDS

More than one-third of all armed protests that occurred in 2021 took place on the grounds around statehouses. Most states outlaw guns inside statehouses, but a majority allow for the open carrying of long guns on statehouse grounds. States considering prohibitions on firearms in and around statehouses and other government buildings include:

POLLING PLACES AND VOTE-COUNTING FACILITIES

During the 2020 election, armed protesters showed up at polling places and vote counting facilities, intimidating voters as they cast ballots and election workers who were counting them. Prohibiting firearms at such locations, as six states and Washington DC have done, can help address this challenge. States considering similar bans include:

Restrictions on the Transfer of Military Weapons to Local Law Enforcement

Local law enforcement has increasingly used inappropriate and intimidating military gear to police protests, including grenade launchers, armored vehicles, and military drones. The militarization of local law enforcement is partly the result of the federal government’s 1033 program, which allows for the transfer of weapons and equipment from the military to local law enforcement. To learn more about reforms aimed at curtailing and regulating the use of military weapons by local law enforcement click below.

Restrictions on Surveillance Technology

Protesters face the use of new types of surveillance technology by law enforcement, including drone surveillance, facial recognition technology, license plate readers, and cell-site simulators. For an analysis of the negative impact of this invasive surveillance technology on protesters’ First Amendment rights and for recommendations to policymakers see ICNL’s Briefer Protesting in an Age of Government Surveillance. To learn more about reforms aimed at limiting surveillance by law enforcement click below.

In response, cities across the nation, such as Nashville, Seattle, and Oakland, have adopted Community Control Over Police Surveillance legislation. The measures in this legislation vary but generally include transparency requirements for the procurement of new surveillance technology; a community advisory committee to create standards for procurement; reports on the technologies’ anticipated impact; and ongoing reporting requirements on their use. Some cities, such as San Francisco and Oakland, have prohibited the use of facial recognition technology by the government altogether.

At the federal level, several legislative initiatives have been introduced to combat the use of surveillance technology and AI. While these bills are not directly addressed to the needs of protestors, they have an outsized impact on the right to freedom of assembly because these technologies have been increasingly used to track and monitor movement leaders and protestors.

Reforming Public Order Laws

Public order laws, such as unlawful assembly, disorderly conduct, and rioting, that have overbroad provisions are often used to arrest peaceful protesters. Some states have introduced bills to better target these laws to limit their abuse. To learn more click below.

Repeal of Anti-Face Mask Laws

Seventeen states have anti-face covering laws. These laws have been used in the past to target protesters, and during COVID-19 create a unique danger to public health. For more information, see ICNL’s briefer on anti-mask laws, COVID-19, and the First Amendment. For recent reforms to anti-face mask laws click below.

Requiring Officer Identification

In order to enhance law enforcement’s accountability during demonstrations, law enforcement officers should prominently display identification, including a name or badge number, as well as their law enforcement agency. For reforms aimed at making officers’ identity clear at demonstrations click below.

Last Updated: November 20, 2023

For more information contact Nick Robinson at nrobinson@icnl.org or Elly Page at epage@icnl.org.