The First Amendment prohibits the government for interfering with freedom of speech and of the press. It complements the right of free speech by protecting “the right of the people peaceably to assemble.”

Civil rights proponents, anti-Vietnam War protesters, and Black Lives Matter supporters have the right to assemble peaceably, as do American Nazi Party members, Westbrook Baptist Church funeral protesters, and the Proud Boys.

The First Amendment protects not only “good” speech but almost all speech. Justice Holmes memorably wrote in his 1929 United States v. Schwimmer dissent that it shields “freedom for the thought that we hate.” The First Amendment is, in two words, “viewpoint-neutral.”

Several states have recently enacted so-called “anti-riot” laws that encroach on the right of assembly under the guise of protecting the public. On April 19, Florida Governor DeSantis signed an “anti-riot” bill that grants civil and criminal immunity to anyone who runs over a protester who is blocking the road. The law denies bail to anyone under arrest for “rioting” and, just for good measure, also protects Confederate monuments.

According to DeSantis, “It’s the strongest anti-rioting pro-law enforcement piece of legislation in the country. There’s nothing even close.” He may be right, but other states are not far behind.

On April 21, Oklahoma Governor Stitt signed a bill that grants immunity from both civil and criminal responsibility to drivers “fleeing from a riot” who “unintentionally” injure or kill “an individual,” apparently including bystanders as well as individuals who are part of the “riot.”

The law also ups the ante for anyone who participates in “any riot” by making him or her equally culpable for any murder or certain other crimes committed by “a principal” in the riot. Another provision makes it a crime to “obstruct” the “normal” use of public streets by “impeding, hindering or restraining” motor vehicles or pedestrians.

Several other states have enacted or are considering similar legislation, and a pending New Hampshire bill, while much different from the Florida and Oklahoma laws, takes a step in the same direction.

HB 197, “An ACT Relative to the Use of Deadly Force in Defense of Another,” was introduced on January 6 and approved by the New Hampshire House on February 25. Now awaiting action by the state Senate, this bill would amend existing law regarding “justified” deadly force by adding protection for anyone who reasonably believes that a person is “likely to use any unlawful force in the commission of a felony against a person in a vehicle.”

The Supreme Court has warned against governmental action that “chills” free speech by creating risks that cause people to hold back from exercising their constitutional rights. Free speech, a free press, the right of assembly—these are all part of our long-held national belief that democracy is best served by encouraging more expression, not less.

Legislatures must therefore establish a compelling public interest before they may limit First Amendment rights of expression. Remembering some of our early history may add perspective to the right to assemble.

Under the Riot Act of 1714, the British Crown could disperse groups of more than twelve, known as “the people out of doors.” The Founding Fathers, including the author of the First Amendment James Madison, were aware of this history, and of the then-recent  “Boston Tea Party” in which members of the Sons of Liberty dumped hundreds of chests of tea into Boston Harbor.

This 1773 protest against “taxation without representation” helped inspire the American Revolution. If pro-British colonial coachmen had run over and injured the Tea Party protesters, a law like what Florida and Oklahoma now have probably would have provided immunity from prosecution. In today’s world, riven by culture wars of a different kind, these new laws may well make people hesitate before participating in peaceful protests.

For more than 130 years the First Amendment applied only to the federal government (“Congress shall make no law …”), but the 1925 decision in Gitlow v. New York “incorporated” the First Amendment into the due process clause of the Fourteenth Amendment, which says “No state,” meaning that state and local governments are now subject to the same restrictions. Thus, our freedoms of speech and peaceable assembly are protected against any undue interference by any state legislature, subject only to reasonable time, place, and manner restrictions.

It may be constitutionally possible for states to toughen existing law without infringing on the right of assembly (perhaps the New Hampshire bill does so), but these other laws use imprecise words that may encourage extremists to aim their cars at demonstrators. The laws are not narrowly tailored and will inevitably chill the First Amendment right to assemble peaceably. They should be stricken down in court as unconstitutional.

And, just as an aside, the Florida “no bail” law likely violates the Eighth Amendment, while protecting Confederate statues is simply tone-deaf.