Some Assembly Democrats look to criminalize disruptive protests

A group of conservative Democratic Assembly members have entered the newest legislative session with a plan to crack down on the kinds of pro-Palestine protests that have regularly taken place in New York City over the past four months.

Assembly Member Stacey Pheffer Amato, a conservative Democrat whose district covers parts of southern Queens, introduced a bill last month that would amend the state’s penal law to expand the definition of “domestic terrorism” to include blocking a public road, bridge, transportation facility or tunnel.

According to Pheffer Amato, the bill would have applied to a pro-Palestine protest at the Macy’s Thanksgiving Parade and to demonstrations on Jan. 8 that blocked three New York City bridges and the Holland Tunnel.  In New York state, “domestic terrorism” is classified as a Class D felony punishable by up to seven years in prison. 

“I get where domestic terrorism is tough,” Pheffer Amato told City & State. “That’s a tough statement, but what do we call it? What do we say to our everyday New Yorkers who are really feeling this on the other side of the bridge?”

Pheffer Amato also spoke about the importance of requiring protesters to request permits from the city before holding demonstrations, noting that protest permits enable the city and law enforcement agencies to make the public aware of road closures in advance. 

Assembly Member Sam Berger, another conservative Queens Democrat and a co-sponsor of Pheffer Amato’s bill, introduced another bill regulating street protests – known as the Dialogue and Decorum Act – late in last year’s session. That legislation, which has attracted more than a dozen Democratic co-sponsors, would amend the state’s penal law to make any “willful disturbance” of a lawful assembly a Class A misdemeanor, punishable by up to a year in jail.

Although Berger introduced the bill in the midst of ongoing protests calling for a ceasefire in Gaza, he said that it was not specifically targeted at pro-Palestine protesters. “We've seen this kind of behavior and these types of demonstrations before the situation in the Middle East in years past,” he said. “And I think, you know, we'll be seeing them afterwards, if we do nothing.” 

Berger did not point to any specific instances in the past; instead, the newly-elected Assembly member said that he wants to take a proactive approach to lawmaking. A recent graduate of St. John’s University School of Law, Berger said his time as a student inspired the bill. “It’s a real problem, because we’re not engaging, and we’re not challenging our viewpoints, which is what we’re supposed to be doing, I believe, especially [at] colleges,” he said. 

Berger added that, in conversations with his peers in the Assembly, questions arose as to why this type of behavior should call for a misdemeanor, which could result in up to one year in jail and a blemish on the individual’s criminal record. A violation, on the other hand, is a non-criminal offense that prohibits individuals from being jailed for more than 15 days. 

“When you have a violation, an officer can issue you a summons. And that's it,” he said. “When you have a misdemeanor, it allows an officer to remove someone from the situation.”

Both bills are currently before the Assembly’s Codes Committee, chaired by Assembly Member Jeffrey Dinowitz. “Generally, I'd like to know that there's broad support for bills that go on an agenda of the Codes Committee, and in the case of these two bills, it's very early, so it’s very hard to know that,” Dinowitz told City & State. 

The Bronx-based representative, however, said that he is generally supportive of what Pheffer Amato and Berger have introduced. “I can tell you that these two bills, I have put my own name on the bills,” Dinowitz said. “And I don't do that for a huge number of the bills in my committee.”

First Amendment concerns

Civil liberties groups and activists were quick to criticize the legislators’ attempts to limit protests.

Donna Lieberman, executive director of the New York Civil Liberties Union, said that Pheffer Amato’s bill could chill citizens’ rights to freedom of speech and assembly. “This bill would allow the government to pick and choose which voices are allowed to be heard in the public sphere,” she said in a statement. “It’s a blatant attempt to chill disfavored, constitutionally-protected protest by wrongly conflating it with terrorism, and to impose harsh criminal penalties for the time-honored practice of peaceful civil disobedience.” 

Susan Kang, an associate professor of political science at John Jay College of Criminal Justice and a member of the New York City chapter of the Democratic Socialists of America, said that the forms of protest targeted by the bills are common, especially among climate organizers. Activists opposed to climate change, for example, may block a roadway to directly prevent greenhouse gas emissions. “It's very standard in democratic societies to use these kinds of disruptive tactics when elected leaders are not responding to the overwhelming support of their people,” she said. 

NYCLU’s Senior Policy Counsel Justin Harrison added that bills similar to those sponsored by Pheffer Amato and Berger are “introduced frequently in the state Legislature to make political points or stir up controversy.”

New Jersey state legislators also recently introduced bills that would make obstructing a public passageway or “desecrating any public monument, insignia, symbol, or structure” fourth-degree crimes.

The national rate of adoption for bills that restrict assembly rights has remained relatively consistent, hovering between 20-25%, according to Elly Page, senior legal adviser at the International Center for Not-For-Profit Law and manager of the U.S. Protest Law Tracker, which tracks state and federal legislation introduced since 2017 related to efforts to inhibit peaceful assembly.  

“Since the start of the war we have seen a clear uptick in bills that would increase penalties for protesters who demonstrate in the street,” she said in an email. “From Arizona to Washington State to Congress we’ve seen lawmakers explicitly point to U.S. protests for Palestinian human rights when introducing this legislation.”