The Trump administration has defied court orders, menaced law firms, and arrested judges. In Trump’s second term, we are witnessing the most vulgar expressions of a long and multipronged right-wing campaign to capture the courts. Through these visible confrontations, the White House seems to want to eradicate any semblance of independence that the public might still attribute to the judiciary and the legal profession.

Mainstream commentators have rightly sounded the alarm. The Department of Justice has claimed broad executive authority in a range of domains, perhaps most chillingly in immigration enforcement, and the lawyers challenging and the courts adjudicating these authoritarian maneuvers play a vital role in checking Trump’s power. When government lawyers invoke wartime legal authority to stretch the president’s power to disappear noncitizens for their nationality or their solidarity with Palestinians, elite legal institutions form an important line of defense.

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June 2025 Issue

But historically, law firms and federal courts have neither been consistent nor principled in curbing executive power. Protest, public outcry, and organized resistance—as opposed to courts and lawyers—are the more durable frontlines in the fight against authoritarianism. For those reasons, we should not ignore the complementary, long-simmering campaign against social movement activity. Just as the right has escalated its efforts to commandeer and remake the state, it is consolidating gains in its offensive to suppress any opposition.

In fits and starts, over the past decade of left agitation, from Ferguson to Standing Rock to the student encampments, state houses and Congress have altered criminal laws to give the police more power to stifle protests, arrest participants, and lock them away.

In Congress, Senator Tim Sheehy from Montana introduced legislation to make it a federal felony to “knowingly and willfully” “disrupt the operation or construction of or preventing the operation or construction of” a gas pipeline.” In a turn to the absurdly vindictive, another bill would require any person convicted of unlawful activity on a university campus to perform any court-ordered community service in Gaza. These federal bills mimic efforts at the local level.

While these laws are generally applicable, legislators’ goals are clear: They want to scare anti-war and environmental activists. There are several key dimensions to these pieces of legislation: They criminalize masking, penalize student activism, and expand rioting and terrorism statutes. These laws are for prosecutors what kettling is for police: They squeeze public life until there is no room to breathe.

“Rioting”

The essence of a riot charge is a group of people who are causing a public disturbance. Riot laws go back to 18th-century Britain, and they helped the London police department—the world’s first—crack down on political rivals who were destroying each other’s churches and property. Since then, urban police departments have used these laws to suppress public protest by asserting, often erroneously, that they are violent and disturbing.

Riot laws, like conspiracy and RICO laws, target collective criminality. That is, there are stiffer penalties reserved for riot charges because the law treats collective action in public as more threatening than individual acts done in private. Cops and district attorneys frequently use a person’s associations and proximity to establish their guilt, which makes it relatively easy for law enforcement to make arrests, shut down a protest, and discourage similar actions.

Over the past four years, states have sought to expand riot laws. In Missouri, the legislature is considering making it a felony to assemble with more than six people and then break a law. As a group closely monitoring these developments, the International Center for Not-For-Profit Law (ICNL), explains, “participants in a seven-person vigil that commits a ‘peace disturbance’ by blocking a sidewalk—a misdemeanor crime—could face felony charges.” In Wisconsin, a proposed law would treat any three-person assembly that is said to pose a “clear and present danger” to property a riot. The same law would treat a blog post that urged readers to chain themselves to a tree as evidence of inciting a riot, also a felony. Finally, the Wisconsin law creates a right to sue anyone who provides material support to people convicted of rioting—deputizing citizens to attack social movement infrastructure, like funders and fiscal sponsors.

Organizers and civil liberties groups have challenged riot laws in Florida and South Dakota with varying degrees of success. In Florida, Dream Defenders sued to enjoin the new law’s enforcement. The group occupied the Florida state capitol for 31 days to demand that the legislature repeal its Stand Your Ground law after a jury acquitted George Zimmerman for killing Trayvon Martin. The Florida Supreme Court upheld the post–George Floyd law, finding that it contained enough safeguards to prevent unknowing bystanders at protests from being swept up. The state court felt assured that the law would properly distinguish between violent and nonviolent protesters and thus conform with the “the historical understanding of riot as a crime of violence.” But the doctrinal safeguards the court noted—mens rea or the requirement that the state prove the person intended to pursue “violent and disorderly conduct” with others—are vindicated only at trial, not when the police make an arrest. The complex intricacies of written rules can make for good law-school exam problems, but they will not constrain a police force.

On another front, states have passed harsh anti-terrorism bills. In West Virginia, ICNL suggests that a proposed law could levy terrorism charges against someone who never themselves damaged property or hurt anyone: “Someone who peacefully participates in a nonviolent but rowdy protest where a few individuals commit property damage could conceivably face ‘terrorism’ charges.” One common theme across the rioting and terrorism laws is that threatening private property is as bad as threatening a person. Some of the provisions are comically vengeful. The West Virginia bill also banishes anyone convicted of terrorism from the state, upon threat of a contempt charge.

Dirty Radicals

Even if these bills are never used, they reflect something ominous and difficult to regulate: a disgust for politically active citizens. These laws dehumanize leftists, whether Palestine solidarity activists, abolitionists, or environmental justice organizers. The West Virginia law reflects its authors’ eliminationist goals. The prosecution of 61 Atlanta activists under Georgia’s RICO law, where the attorney general of Georgia deliberately conflated ideological opposition to police militarization with a criminal conspiracy, confirms the right’s ambition to dismantle progressive social movements. These laws try to intimidate people from engaging in even minimally disruptive political activity like sit-ins, highway demonstrations, throwing red cans of paint at weapons manufacturers’ offices, and protests more broadly. And they give police departments yet more authority to arrest protesters.

Right-wing legislators are renegotiating the three-way compromise between policing, private property, and public space. The laws are trying to normalize an extremely aggressive defense of property interests at the expense of expressive activity, pushing the limits beyond an already repressive status quo. Several distinct constituencies have coalesced to support these bills.

After the Standing Rock protests against the Dakota Access Pipeline in 2017, the fossil fuel industry advanced critical infrastructure bills, which passed in more than a dozen states, to criminalize property destruction deemed critical infrastructure like pipelines and construction equipment. In reaction to widespread protests opposing Israel’s genocide, the Heritage Foundation has launched a campaign to purge Palestine solidarity from the progressive agenda by equating the cause with terrorism. The conservative foundation’s Project Esther outlines ways to penalize Palestine activists who are criticized for taking “advantage of our open society,” specifically the Bill of Rights. Meanwhile, police unions have endorsed these bills because they give them more power to violently quell civil disorder. At the federal and state level, there’s an appetite to pursue groups engaged in direct action and civil disobedience, and to eliminate any of the legal restrains that regulate the police when they do so.

For progressives, particularly those in red states, this new climate should force us to consider other tactics and perhaps, in some circumstances, even rule out street protests. We need to be prepared to set up legal defense funds to protect those being prosecuted. We must offer a menu of choices for public demonstrations: events for families in playgrounds, permitted block parties, public education held at separate times and dates from protests that might involve civil disobedience—and all of that coordinated to build public pressure. This requires a strong ethic of mutual respect across different segments of social movements that may have distinct theories of change and risk calculations but share a common goal. This kind of calibration is essential to maintain solidarity. Finally, we need to constantly talk about the repression as a part of the conservative legal strategy to annihilate its opposition, rather than as an honest effort to deliver safety. To put it bluntly, the encampments aren’t violent—the president is.