Coming Down the Pipeline: First Amendment Challenges to State-Level "Critical Infrastructure" Trespass Laws

69 Am. U. L. Rev. 665 (2019).

* Senior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2020, American University Washington College of Law. This Comment would never have been finished without support from my family, especially my husband, Jorge Franzini, and my parents, Susan and Ted. I am also endlessly grateful for the Law Review staff’s hard work, as well as for the encouragement and support of Professors Amanda Leiter and Robert Tsai. This Comment is dedicated to environmental defenders on the front lines in the United States and around the world.

Since late 2016, state legislatures across the country have been inundated by a wave of anti-protest bills. In states with significant oil and gas development, new “critical infrastructure” trespass laws have raised the stakes for those who protest pipeline construction, whether on public or private land. In some states, these laws make trespassing near pipelines a felony; in other states, organizations who aid pipeline protestors face potentially devastating financial liability. This Article explores the critical First Amendment concerns raised by critical infrastructure trespass laws, as well as their implications for the future of American protest. These laws implicate an uncertain but undeniably vast amount of both public and private lands where protected expression can and should be able to occur. Provisions targeting “conspirator” groups additionally violate individuals’ and organizations’ First Amendment rights to free speech and free association. These statutes’ vagueness and their outsized penalties risk criminalizing protected speech and thus have an unconstitutional chilling effect on the legitimate exercise of free speech and free association by individuals and groups organizing to protest fossil fuel infrastructure development.

Introduction

In late summer 2018, two sets of trespassing charges were filed in southern Louisiana in connection with the Bayou Bridge pipeline, a project stretching across sections of Louisiana’s ecologically sensitive (and crawfish-rich) Atchafalaya Basin. The first charges were filed against pipeline protesters, who had been arrested after being detained by private security for the company funding the pipeline, Energy Transfer Partners.¹ The rest of the charges were filed against the pipeline company itself, which had moved construction crews onto private property against the express wishes of landowners, proceeding to cut down trees and tear up land without a clear legal right to be there.²

Just two weeks earlier, Louisiana’s legislature passed a new law that heightened protections for “critical infrastructure”—a category lawmakers deliberately expanded beyond its definition at the time (which included sites such as water treatment facilities and power stations) to include pipeline construction sites and any land containing equipment or materials being used to construct a pipeline.³ Similar critical infrastructure trespass bills have been cropping up in state legislatures around the country since early 2017,⁴ following the widely covered clashes between demonstrators and law enforcement in Cannon Ball, North Dakota, along the construction route of the Dakota Access pipeline.⁵ The Louisiana state legislature successfully passed its critical infrastructure trespass law in 2018, approximately one year after Oklahoma passed the first.⁶ At least a half dozen other states have drafted similar bills, and several have put these bills to a vote.⁷

Because of Louisiana’s new law, the protesters arrested in early September faced potential felony charges for the alleged crime of trespassing on a pipeline easement—land upon which, mere weeks earlier, trespassers would have faced at most a misdemeanor charge.⁸ Meanwhile, for Energy Transfer Partners’ acts of trespass, a Louisiana judge granted the company rights to the land and required them to pay just $150 to each landowner whose property construction crews occupied and damaged.⁹

This Comment will argue that critical infrastructure trespass laws are unconstitutionally vague and overbroad, implicating an uncertain but undeniably vast amount of both public and private lands where protected expression can and should be able to occur. The provisions in these laws targeting “conspirator” groups additionally violate individuals’ and organizations’ First Amendment rights to free speech and free association. These statutes’ vagueness and their outsized penalties risk criminalizing protected speech and thus have an unconstitutional chilling effect on the legitimate exercise of free speech and free association by individuals and groups organizing to protest fossil fuel infrastructure development. Part I will discuss the events that inspired the wave of anti-protest legislation that included the first critical infrastructure trespass bills, the central components of these bills, and key First Amendment issues that these laws raise. Part II will analyze the strongest potential First Amendment challenges to critical infrastructure trespass laws and argue that critical infrastructure trespass bills are unconstitutionally overbroad and vague. Finally, the Conclusion explores whether existing First Amendment jurisprudence goes far enough in protecting free speech rights in the context of civil disobedience, or whether courts’ reluctance to scrutinize facially neutral, conduct-oriented laws under the First Amendment creates opportunities for legislative abuse.

I. Background

A. Oil and Water: State Lawmakers’ Escalating Hostility Towards Protesters During and After Standing Rock

As the saying goes, there is no putting toothpaste back in the tube. The same is true for oil and oil pipelines. When oil spills, no cleanup effort can return the surrounding landscape to its prior condition.¹⁰ While affected wildlife populations may eventually recover, individual birds and mammals rarely do; studies have demonstrated that “in general, the post-treatment survival rate of oil-soaked birds is less than one percent.”¹¹ Like birds, mammals attempt to clean themselves of the oil, ultimately dying of organ failure.¹² Cleaning oil-soaked vegetation often requires cutting or burning plants that cannot be protected ahead of time.¹³ Groundwater is equally vulnerable, and while water supplies can sometimes be restored to useable quality after an oil spill, groundwater contamination in particular “is not always amenable to total clean up.”¹⁴ Oil-contaminated water can cause serious harm to the health of anyone who relies on that water source, from liver and kidney damage to elevated risk for certain blood conditions ranging from high blood pressure to leukemia.¹⁵ The United States has experienced “more than 1,500 spills from crude oil pipelines” in the last decade.¹⁶

In late 2014, Texas-based Energy Transfer Partners began applying for permits to build a 1172-mile crude oil pipeline stretching from North Dakota’s booming Bakken oil fields to southern Illinois.¹⁷ The pipeline’s proposed route required tunneling under the Missouri River, the longest river in the United States, a half-mile upstream from the Standing Rock Sioux Reservation and surrounding lands near Cannon Ball, North Dakota.¹⁸ In addition to the Standing Rock Sioux Tribe, roughly seventeen million people downstream of the reservation rely on the Missouri River for water.¹⁹ Other proposed pipeline routes, including one that would have placed the pipeline’s Missouri River crossing just north of North Dakota’s capital, Bismarck, were rejected—partly due to concerns over risks to the city’s water supply.²⁰

Over the next two years, opposition to the pipeline mounted, particularly on the Standing Rock reservation.²¹ Even other federal agencies began to voice concerns in early 2016, after the U.S. Army Corps of Engineers published a draft Environmental Assessment regarding the pipeline’s Missouri River crossing.²² In March of that year, for example, the U.S. Environmental Protection Agency (EPA) sent a letter to the Army Corps calling for a revised draft Environmental Assessment and a second public comment period in light of the route’s proximity to the Standing Rock reservation and other drinking water supplies.²³ The U.S. Department of the Interior and the Advisory Council on Historic Preservation sent similar letters citing worries that the Corps “did not adequately justify or otherwise support its conclusion that there would be no significant impacts upon the surrounding environment and community.”²⁴

Over that summer, members of the Standing Rock community, other Native tribes, and environmental groups from across the country began arriving in Cannon Ball, where two makeshift camps had been set up near the pipeline’s contested river crossing site.²⁵ The main camp, Sacred Stone Camp, sat on land located within the boundaries of the Standing Rock reservation and owned by LaDonna Brave Bull Allard, who had established the camp and invited demonstrators to join it.²⁶ As numbers swelled at the Sacred Stone site, a second camp, dubbed Oceti Sakowin, spilled onto land managed by the Army Corps of Engineers north of the reservation.²⁷ The two camps soon housed hundreds of residents prepared to stay indefinitely.²⁸ Meanwhile, the Standing Rock Sioux Tribe filed a federal legal challenge to the project’s Army Corps permits, seeking to halt and prevent further construction until a new environmental impact review was completed.²⁹

Construction crews did not wait for a final court decision on the Tribe’s lawsuit.³⁰ Bulldozers broke ground in early September, setting the stage for the first serious clashes between protesters and private security forces.³¹ By late October, with the 2016 general election looming and lawyers continuing to battle over the project in court, tensions on the ground had escalated rapidly.³² Militarized local police equipped with armored vehicles, riot gear, and sound cannons confronted protesters who had established a blockade near the camps.³³ The number of protest-related arrests approached 300.³⁴ Reports of local law enforcement unlawfully detaining and mistreating protesters put a spotlight on the conflict, drawing the attention of the United Nations’ (UN) Permanent Forum on Indigenous Issues.³⁵ The situation escalated further in late November when police fired rubber bullets, tear gas, and water cannons at protesters in sub-freezing temperatures.³⁶ Less than two weeks later, the outgoing Obama Administration denied a final permit for the pipeline—just ahead of an Army Corps deadline requiring the protesters to leave the two main campsites.³⁷

Ultimately, however, the newly elected Trump Administration gave the Dakota Access project a green light in early 2017.³⁸ By the time law enforcement cleared away the Oceti Sakowin camp on February 23, 2017, an estimated 800 people had been arrested and charged with various offenses for their participation in the Standing Rock protests.³⁹ Local law enforcement and prosecutors were accused of “an aggressive campaign” to suppress activism “using drawn-out criminal cases and lengthy prison sentences.”⁴⁰ Charges levied against hundreds of protestors were ultimately dropped, but not before those charged were forced to live with the specter of potentially lengthy and costly legal proceedings.⁴¹ In some cases, defense attorneys reported a pattern of protestors seeing charges dropped after they had incurred the upfront costs of preparing their cases, only to be re-filed at a later date, a practice a local attorney described as “financial warfare.”⁴² One state prosecutor handling the Standing Rock cases argued that protesters who could not afford their own counsel should be required to reimburse the state for their court-appointed representation.⁴³

In the wake of the Standing Rock conflict, state legislators across the country began similarly aggressive campaigns, introducing a flurry of bills targeting protesters, particularly in states where fossil fuel infrastructure development was booming. These proposals ranged from measures that would enable prosecutors to charge demonstrators under racketeering laws to bills intended to “indemnify drivers who strike protesters in the street.”⁴⁴ Some of the proposals were draconian enough to attract the attention of special rapporteurs from the UN’s Office of the High Commissioner for Human Rights, who lodged a complaint with the U.S. Department of State.⁴⁵

These bills included proposals to penalize anyone who set foot on land owned—or expropriated—by a pipeline company. Oklahoma was the first state to act. In early 2017, state legislators began debating House Bill (HB) 1123, a measure targeting trespass on “critical infrastructure.”⁴⁶ The bill was introduced just days after protesters made public their intent to protest the Diamond Pipeline, a project that would break ground in Oklahoma and snake its way to Tennessee.⁴⁷ The bill’s principal author, State Representative Scott Briggs, emphasized, “[A]cross the country, we have seen time and time again these protests have turned violent, these protests that have disrupted the infrastructure in those other states . . . . This is a preventative measure . . . to make sure that doesn’t happen here.”⁴⁸

The Oklahoma legislature passed HB 1123 in May 2017.⁴⁹ Because the legislature approved the bill as an “emergency” measure, it went into effect as soon as Governor Mary Fallin signed it.⁵⁰ By early 2018, other states began jumping on the bandwagon. In January, the American Legislative Exchange Council (ALEC)—a group funded in part by fossil fuel giants including ExxonMobil, Shell, and Chevron⁵¹—published a model critical infrastructure trespass bill “drawing inspiration from” Oklahoma’s new law.⁵² In the following months, legislators in Iowa, Ohio, Pennsylvania, Wyoming, Minnesota, and Louisiana all introduced variations on critical infrastructure trespass bills, some modeled after ALEC’s proposal.⁵³

Much like in Oklahoma, Louisiana lawmakers introduced their own draft critical infrastructure bill amidst concerns over protests against a major pipeline project in the Bayou State.⁵⁴ The completed Bayou Bridge pipeline, another Energy Transfer Partners project, would carry crude oil across Louisiana’s Atchafalaya Basin, wetlands more expansive than the Florida Everglades.⁵⁵ In early 2018, a coalition of local, state, and national conservation groups filed suit to block construction, citing potentially irreversible damage to the Basin’s fragile ecosystem.⁵⁶ After a district court granted a temporary injunction, however, the Fifth Circuit overturned the lower court’s decision, allowing construction to proceed.⁵⁷

Louisiana passed its critical infrastructure law in August 2018.⁵⁸ Within just a few weeks, the first protesters were arrested near a Bayou Bridge pipeline construction site.⁵⁹ Some of these arrests reportedly involved protesters being pulled from their kayaks onto an airboat, despite the fact that navigable waterways in Louisiana are generally treated as public property. Other arrests occurred on private property surrounding the pipeline easement, even though the protesters claimed to have express permission from the landowners to be present.⁶⁰ Under the state’s new critical infrastructure law, these protesters each faced potential felony convictions and up to five years in prison.⁶¹

B. The Anatomy of Critical Infrastructure Trespass Laws

1. Defining “critical infrastructure” and setting draconian penalties

Trespass is already a misdemeanor offense in every state where critical infrastructure bills have been passed or introduced. Critical infrastructure trespass laws establish a separate class of penalties to protect an expansive and less-than-clearly defined range of both private and public property that is loosely defined as “critical infrastructure.”⁶² To be charged with critical infrastructure trespass in Oklahoma, for example, an individual must simply “enter property containing a critical infrastructure facility without permission by the owner of the property or lawful occupant thereof.”⁶³

States have taken different approaches to defining “critical infrastructure,” but a common element is that these definitions are vague and far-reaching. Critical infrastructure bills proposed to date have implicated sites as varied, ubiquitous, and poorly defined as “transportation facilities,”⁶⁴ “below or aboveground pipeline or piping,”⁶⁵ and “electric power lines and associated equipment infrastructure.”⁶⁶ Louisiana is home to roughly 50,000 miles of intrastate pipelines alone.⁶⁷ Across the country, that number skyrockets to nearly two million miles of oil and gas pipelines, according to the United States Department of Transportation.⁶⁸ Louisiana’s law reaches still further to include “any and all structures, equipment, or other immovable or movable property” located on any property containing structures defined as “critical infrastructure” or “any site where the construction or improvement of any such facility or structure . . . is occurring.”⁶⁹ As a result, in the context of pipelines, Louisiana’s law reaches far beyond operational pipelines to include any pipeline construction site or any property where any piece of material or equipment that might be used to construct a pipeline is being stored. In Iowa, critical infrastructure similarly includes “[a]ny land, building, conveyance, or other temporary or permanent structure whether publicly or privately owned, that contains, houses, supports, or is appurtenant to any critical infrastructure.”⁷⁰ Such vague and overbroad definitions do not add clarity to the scope of these laws; instead, they implicate a vast amount of both private and public property.

Additionally, legislatures in states like Idaho⁷¹ and Iowa⁷² have proposed critical infrastructure bills that go beyond trespass to encompass acts of “impeding critical infrastructure” and “critical infrastructure sabotage.”⁷³ These provisions reach an even broader and even less clearly defined assortment of property and expressive conduct, such as peaceful protests on access roads or other adjacent properties.⁷⁴ In Texas, a group of protestors who rappelled from a bridge near various oil refineries now faces charges for “disrupting critical infrastructure” because shipping traffic was interrupted.⁷⁵

Potential financial penalties for critical infrastructure trespass also far exceed those for misdemeanor trespass.⁷⁶ Possible fines range from $1000 to $10,000 for individuals.⁷⁷ In Iowa, those convicted of critical infrastructure sabotage “shall be punished by a fine of not less than eighty-five thousand dollars.”⁷⁸ Potential prison time for those convicted under critical infrastructure trespass laws ranges anywhere from six months, for those states whose laws include a misdemeanor charge, to more than five years.⁷⁹

Some statutes, like Louisiana’s, include provisions noting that “lawful assembly” is protected by the U.S. Constitution, but such provisions do little to clarify for the public exactly when, where, and how these critical infrastructure laws might transform an ordinary act of protest into a felony.

2. Consequences for organizations

In addition to severe penalties for individuals, most critical infrastructure trespass bills include harsh penalties for organizations affiliated with individuals charged under these laws. Oklahoma’s HB 1123 includes a provision that states that any organization “found to be a conspirator with persons who are found to have committed” any of the individual offenses described in the statute “shall be” fined up to ten times the maximum penalty faced by the individual—in other words, up to $1,000,000 per case.⁸⁰ Under Oklahoma law, conspiracy merely requires “any agreement, combination or common plan or scheme by two or more persons, coupled with an overt act in furtherance of such agreement . . . to violate any section of this act.”⁸¹ ALEC included the “conspirator” provision in its model bill.⁸²

A whole host of otherwise lawful activities routinely undertaken by advocacy organizations, from coordinating peaceful protests to training people how to engage in nonviolent civil disobedience to simply offering material support such as food and water to demonstrators, could create massive liability for an organization as soon as one demonstrator steps over the wrong property line.⁸³

These three elements—expansive definitions of what constitutes “critical infrastructure,” felony penalties for individuals, and vicarious liability for organizations—have each cropped up in multiple states’ proposed critical infrastructure trespass laws. Each raises significant First Amendment concerns.

C. Analyzing Laws Under the First Amendment

Acts of protest and the First Amendment have a long and complicated history. While the First Amendment only specifically references protections for “speech,” the Supreme Court has long recognized that First Amendment protections reach beyond “the spoken or written word.”⁸⁴ Expressive conduct, like an act of protest, is central to the Supreme Court’s First Amendment jurisprudence.⁸⁵ When laws regulate conduct that is not clearly expressive, however, First Amendment challenges become more complicated.

Political expression is generally protected by the First Amendment.⁸⁶ Yet, the conduct accompanying protesters’ political expression is less well protected, particularly in cases involving acts of civil disobedience. Courts typically treat laws that purport to regulate only conduct, even if they might also implicate speech or expressive conduct, as content-neutral laws subject to intermediate, rather than strict scrutiny.⁸⁷ Under intermediate scrutiny, courts must ask whether a law is “justified without reference to the content of the regulated speech,” is “narrowly tailored to serve a significant governmental interest,” and leaves open “ample alternative channels for communication of the information.”⁸⁸ The Supreme Court has further clarified that “narrowly tailored” is not as exacting a standard under intermediate scrutiny as under strict scrutiny; under intermediate scrutiny, a regulation passes muster provided it is not “substantially broader than necessary to achieve the government’s interest.”⁸⁹ By contrast, a regulation subject to strict scrutiny must be “the least restrictive or least intrusive means” of achieving a legitimate governmental interest.⁹⁰

A similar sliding scale exists regarding how compelling the government’s interest in enacting a particular regulation must be in order to justify its restrictions on either speech or expressive conduct.⁹¹ In United States v. O’Brien,⁹² the Supreme Court held that a law imposing criminal penalties for burning draft cards was constitutional despite the conduct having expressive elements—in O’Brien’s case, publicly burning his draft card to express his opposition to the draft and the Vietnam War.⁹³ The Court held that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”⁹⁴ The Court does not define a ”sufficiently important governmental interest,” although it acknowledges this lack of precision and cites several other terms that are comparable: “compelling; substantial; subordinating; paramount; cogent; strong.”⁹⁵ The O’Brien test still governs the Court’s analysis of laws that place a burden on “expressive conduct”—such as acts of protest meant to communicate a political message—in order to balance the value of laws that uniformly regulate certain types of conduct against “the undue suppression of opinions or ideas.”⁹⁶

While the substantial government interest in regulating certain conduct must be “unrelated to the suppression of free expression,” the degree to which courts have been willing to question legislatures’ asserted intent is minimal. The Supreme Court has also noted that it would not “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”⁹⁷ This reasoning has limited courts’ willingness to examine legislatures’ motives in passing laws that, on their face, assert a valid governmental interest in regulating conduct, even if the legislative history might reveal other primary motives.

1. Trespass and the First Amendment

Trespass laws, generally, are no exception to the relatively under-protective rules governing the First Amendment analysis of facially content-neutral, conduct-oriented laws. Additionally, under most circumstances, the First Amendment “does not shield the exercise of speech on private property.”⁹⁸ This is true even for acts of trespass intended to communicate a political message.

Nevertheless, this line of precedent has several critical caveats.⁹⁹ When private property is not used solely for private purposes, the Court has been less absolute in its jurisprudence. In Marsh v. Alabama,¹⁰⁰ the Court held that a private company town could not invoke a state trespassing statute to prevent leafleting on sidewalks, even though the sidewalks in this case were technically private property.¹⁰¹ Writing for the majority, Justice Hugo Black asserted that “[w]hen we balance the Constitutional rights of owners of property against those of the people to enjoy [First Amendment rights], as we must here, we remain mindful of the fact that the latter occupy a preferred position.”¹⁰² The Court emphasized the functional nature of the property in question, noting that while a private company might own title to the town and its sidewalks, the town otherwise operated just like any other town, and common spaces like sidewalks functioned like shared public areas where First Amendment protections are guaranteed in other communities.¹⁰³ Justice Frankfurter, in a concurring opinion, added that “the technical distinctions on which a finding of ‘trespass’ so often depends are too tenuous to control decision[s] regarding the scope of the vital liberties guaranteed by the Constitution.”¹⁰⁴ The Court extended this balancing test to a privately-owned but publicly accessible shopping center in Amalgamated Food Employees Union v. Logan Valley Plaza.¹⁰⁵

The Court has since distinguished and narrowed its holdings in Marsh and especially Logan Valley, perhaps most notably in Lloyd Corp. v. Tanner¹⁰⁶ and Hudgens v. NLRB.¹⁰⁷ It has not, however, gone so far as to abandon its balancing of constitutional interests in such cases. In Lloyd Corp., the majority emphasized that First Amendment safeguards place limits on state action, not on owners of “private property used nondiscriminatorily for private purposes only.”¹⁰⁸ The Court reiterated this holding in Hudgens, where the majority further stated that the decision in Lloyd Corp. amounted to a “total rejection” of the holding in Logan Valley—even though the Court in Lloyd explicitly distinguished Logan Valley rather than overruling it.¹⁰⁹ Nonetheless, the Hudgens Court clearly employs the same balancing test followed by both Logan Valley and Lloyd Corp., though with different results, to hold that “the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike . . . .”¹¹⁰ As Justice White notes in his concurrence, this outcome would have been the same had the majority explicitly adopted the balancing test employed in Logan Valley.¹¹¹

Additionally, most First Amendment trespass cases involving facilities designated by federal and state governments as “critical,” high-security properties have dealt with facilities such as military bases and jails, where the compelling government interest in preventing trespass is either central to the nature of the property—as with jails—or is a government interest to which courts have historically been very deferential, such as national security.¹¹² Though O’Brien did not deal with trespass, the Court repeatedly emphasized that the “power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.”¹¹³ Similarly in Adderley v. Florida,¹¹⁴ the Court upheld trespass convictions for students arrested while protesting on the premises of a local jail.¹¹⁵ The Court highlighted the secure nature of the facility and the fact that the public did not have open access to the jail, despite it being public property.¹¹⁶ The Court relied on similar facts in United States v. Apel,¹¹⁷ which involved an antiwar activist charged with trespassing on property controlled by Vandenberg Air Force Base.¹¹⁸ The Court noted that Vandenberg had been designated as a “closed base” due to its “sensitive missile and space launch facilities,” a designation that extended to areas around the base to which the military allowed conditional public access, but over which the base Commander retained ultimate authority.¹¹⁹ However, had either Apel or O’Brien involved a less sensitive government interest, or had Adderley involved a type of property where security and lack of public access were less integral to the government’s interest, these cases might have turned out differently.

While the above cases make it clear that laws regulating trespass generally fall outside the scope of the First Amendment, it is also clear that this is not an absolute, hard-and-fast rule, and that a balancing of fundamental rights, government interests, and the specific character of the property at issue is necessary.

It should also be noted when “balanc[ing] the Constitutional rights of owners of property against those of the people to enjoy [First Amendment rights],” that the penalties in all of the trespassing cases discussed above were misdemeanor convictions or fines.¹²⁰ The protestors in Adderley faced misdemeanor trespassing charge and a $100 fine or a maximum three months in jail.¹²¹ The protestor in Apel faced less than $500 in fines and no more than six months in jail, even after multiple incidents.¹²² None of these cases approached the severity of penalties threatened by critical infrastructure bills. In assessing whether content-neutral regulations impose merely “incidental limitations” on First Amendment rights, the penalties imposed must also be considered.

2. Vagueness and overbreadth

Another pair of doctrines often invoked in protest and civil disobedience cases are vagueness and overbreadth. The key constitutional questions in assessing vagueness and overbreadth are whether a law implicates too much protected expression, whether it fails to put the public on notice regarding what kinds of conduct are prohibited, and whether it enables discriminatory enforcement.¹²³ Vagueness and overbreadth challenges are not only critical tools for those who have been subject to unconstitutional laws but also for those who wish to preemptively challenge the application of vague and overbroad laws in future cases, based on the laws’ potential to discourage constitutionally protected speech and expressive conduct before it even takes place.¹²⁴ Different courts have recognized the harm posed by this “chilling effect” to different degrees and in a variety of contexts. In National Student Ass’n v. Hershey,¹²⁵ the U.S. Court of Appeals for the District of Columbia Circuit noted that “[t]he peculiar feature of suits alleging a First Amendment chilling effect . . . is that if the allegation is correct, immediate and real injury is done to the plaintiff’s interests if he does not speak or act as he says he wants to.”¹²⁶

Of these two doctrines, overbreadth is uniquely concerned with the First Amendment. For a law to be overbroad, it must reach constitutionally-protected conduct even if its stated intent is to regulate activities that are “constitutionally subject to regulation.”¹²⁷ Yet, overbreadth challenges are an uphill battle, as the doctrine has “long rested on the periphery of First Amendment law.”¹²⁸ In Broadrick v. Oklahoma,¹²⁹ the Court emphasized that the baseline rules for challenging a law as overbroad are stringent and that the Court is reluctant to strike down a law due to overbreadth except under extreme circumstances.¹³⁰ The Court refers to the application of the doctrine as “strong medicine . . . employed by the Court sparingly and only as a last resort,” because the result of such a holding typically involves striking down the challenged law in its entirety.¹³¹ In Broadrick, the Court upheld a state statute governing state employees’ political activities on the grounds that appellants had failed to demonstrate that the law was substantially overbroad.¹³² However, the overbreadth doctrine remains a powerful tool in cases where parties can successfully invoke it. The Court has identified two significant factors it considers in addressing overbreadth: whether a law allows for excessive enforcement discretion and whether the statute in question imposes criminal sanctions.¹³³ In United States v. Robel,¹³⁴ the Court held a law to be overbroad due to its blanket prohibition on “all types of association with Communist-action groups” for individuals with jobs in designated “defense facilities,” without regard to “the quality and degree” of an individual’s group membership or the nature of their job.¹³⁵ In his concurrence, Justice Brennan added that delegating sole authority to the Secretary of Defense to designate “defense facilities” created “the danger of overbroad, unauthorized, and arbitrary application of criminal sanctions in an area of protected freedoms”—in that case, freedom of association.¹³⁶ Justice Brennan added that due to the statute’s lack of any “meaningful standard” by which authorities would determine what facilities would receive such designations as well as the absence of any procedures “to contest or review” those designations, the law was overbroad and thus invalid.¹³⁷ Similarly, in City of Houston v. Hill,¹³⁸ the Court held that a municipal ordinance was substantially overbroad in part due to the “unguided discretion” of police in enforcing the statute.¹³⁹

While courts have been particularly reluctant to embrace overbreadth challenges in cases involving “ordinary criminal laws,” such as trespass, these laws do not fully escape First Amendment scrutiny simply because they regulate “ordinary” criminal conduct.¹⁴⁰ In such cases, the Court has typically employed a case-by-case inquiry that results in a reversed conviction if a specific individual’s conduct under the particular circumstances should have been protected.¹⁴¹ This approach allows for the “ordinary” criminal law at issue to remain in place, which would not be the case if a court sustained an overbreadth challenge.¹⁴² However, the “ordinary criminal laws” considered in this line of precedent typically involve common misdemeanor offenses, such as common-law breach of the peace¹⁴³ or violating anti-noise ordinances.¹⁴⁴ Few of these cases involve laws that rise to the level of a potential felony conviction or hefty five- to six-figure fines. And despite the Court’s articulated reluctance to strike down “ordinary criminal laws” as overbroad, in Hill, the Court nonetheless emphasized that “[c]riminal statutes must be scrutinized with particular care . . . those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have a legitimate application.”¹⁴⁵

3. Organizational freedom of speech and association

First Amendment protections for organizations and their members have historically proven to be fairly robust. These protections extend not only to individuals in their role as members of an organization but to organizations themselves. As a baseline rule, the First Amendment protects political organizations’ freedom of speech just as it protects their members’ freedom of speech.¹⁴⁶ In NAACP v. Button,¹⁴⁷ faced with efforts by the Virginia state legislature to target the NAACP and neutralize the organization’s aggressive litigation efforts in promotion of civil rights, the Court held that the First Amendment protects both “vigorous advocacy” as well as “the right ‘to engage in association for the advancement of beliefs and ideas.’”¹⁴⁸ As Justice Harlan emphasized in his dissenting opinion, “[f]reedom of expression embraces more than the right of an individual to speak his mind. It includes also his right to advocate and his right to join with his fellows in an effort to make that advocacy effective.”¹⁴⁹

When faced with the question of organizations’ liability for the actions of individuals, the Court has broadly indicated that the acts of a few are not, by themselves, sufficient to indict an entire organization or its advocacy efforts. In NAACP v. Claiborne Hardware Co.,¹⁵⁰ the Court upheld demonstrators’ right to organize an economic boycott under the First Amendment despite allegations of violence by certain boycott participants and charges that the boycott amounted to “malicious interference with the plaintiffs’ businesses.”¹⁵¹ Regarding the acts of violence, evidence demonstrated that certain supporters of the boycott “discipline[d]” those who did not participate in the boycott using tactics such as throwing bricks through home windows and beating individuals in the street.¹⁵² Nonetheless, Justice Stevens wrote for the majority, an “effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.”¹⁵³ The Court was not willing to impose liability on the NAACP for individuals’ actions during the course of an advocacy effort that was otherwise “uniformly peaceful and orderly.”¹⁵⁴

4. Content neutrality and the question of legislative intent

Though courts have been hesitant to look beyond the face of a law when asking whether the regulation is content-based or content-neutral,¹⁵⁵ particularly if the law only regulates conduct, there is some key precedent for peeling back the veil of legislative intent in the First Amendment context. In Wallace v. Jaffree,¹⁵⁶ the Supreme Court found that the expansion of an existing state statute to explicitly include “voluntary prayer” violated the First Amendment’s Establishment Clause because the law as previously written was already broad enough to allow for voluntary prayer.¹⁵⁷ The Court cited the initial law as one type of evidence of impermissible intent, noting that the law had been sufficiently broad to indicate that the only purpose of expanding it further was to endorse a religious practice.¹⁵⁸ The Court also noted that there was evidence in the legislative record to demonstrate the bill sponsor’s impermissible intent—“‘to return voluntary prayer’ to the public schools.”¹⁵⁹ The Court specifically referenced an evidentiary hearing conducted by the District Court during which the lower court heard from the bill’s sponsor, who admitted that he had “no other purpose in mind” for the bill aside from returning prayer to schools.¹⁶⁰ The weight of these two types of evidence, taken together, was sufficient to pierce the otherwise largely impenetrable veil of legislative intent.¹⁶¹

Additionally, while the Court has expressed a general unwillingness to dig into legislative intent when determining whether a law was meant to target protected First Amendment activities, Wallace is not the only case in which the Court has—even if less explicitly—considered non-textual evidence in assessing a law’s purpose and breadth in a First Amendment context. In Broadrick, in determining whether a statute was overbroad, the Court referenced several statements that went beyond the actual text of the law in question.¹⁶² The Court quoted both the State Personnel Board and the State’s Attorney General’s interpretations of the law and its scope; these interpretations narrowed the statute’s theoretical application and thus weighed against a finding of overbreadth.¹⁶³ In referencing these remarks, Justice White, writing for the majority, plainly stated, “Surely a court cannot be expected to ignore these authoritative pronouncements in determining the breadth of a statute.”¹⁶⁴ If courts will consider such non-textual statements in their efforts to avoid striking down a law as unconstitutional, they should also consider similarly “authoritative pronouncements” when they attest to an unconstitutional purpose.

II. Analysis

While critical infrastructure trespass laws present significant challenges to those who wish to contest these laws under the First Amendment, there are several potential paths forward that could prove vital in protecting citizens’ rights to protest against infrastructure projects that may have profound implications for their communities’ welfare.

A. Critical Infrastructure Trespass Laws Are Overbroad, Implicating a Substantial Amount of Protected Expression While Giving Law Enforcement an Impermissible Amount of Enforcement Discretion

Pipelines are not like the other self-contained facilities—such as chemical plants or water treatment facilities—that are protected under pre-existing critical infrastructure bills. Nor are they confined to high-security properties like those examined in Adderley,¹⁶⁵ or discreet tracts of private property as in Lloyd.¹⁶⁶ Pipelines, by definition, cross numerous types of property, including property where protected expression could otherwise occur. Pipelines run beneath public sidewalks,¹⁶⁷ through backyards,¹⁶⁸ past neighborhood playgrounds,¹⁶⁹ near vital groundwater sources,¹⁷⁰ and through critical watersheds.¹⁷¹ Yet critical infrastructure trespass laws do not distinguish between trespassing on or interfering with pipeline easements that run through public or private lands, or private lands abutting public lands. They do not distinguish between pieces of property that have been purchased in their entirety by energy companies and property over which the energy company holds an easement. Nor do they account for the fact that some landowners are willing hosts, while others have been coerced through exercise of eminent domain. As a result, the statutes reach both publicly accessible lands and private lands to which landowners have granted public access and thus implicate substantially more protected First Amendment expression than typical trespass statutes, with far more serious potential consequences.

1. The full scope of affected property is vague and overbroad

Two key provisions common to critical infrastructure statutes are demonstrably vague and overbroad, implicating a substantial amount of property on which expressive conduct would otherwise be protected, while at the same time giving policing entities too much enforcement discretion.

Louisiana’s “any site” and “any and all structures, equipment, or other immovable or movable property” language illustrates how these statutes reach a significant amount of property that might otherwise afford protesters First Amendment protections for expressive conduct. As in Robel, the full scope of property that could fall within the reach of critical infrastructure laws is unclear but undeniably vast.¹⁷² Pipelines are rarely constructed on property already belonging to pipeline companies; instead, constructing a pipeline typically requires crossing public lands or claiming easements through many private landowners’ properties along the pipeline route.¹⁷³ In Robel, the Government justified the statute’s breadth by arguing that it served a critical national security purpose; to this, the Court replied that “[e]ven the war power does not remove constitutional limitations safeguarding essential liberties.”¹⁷⁴ In the case of critical infrastructure trespass laws, the justification is far less compelling, particularly when it comes to pipeline construction sites. Pipeline construction sites have not traditionally required, nor have they received, a security status comparable to nuclear facilities or military bases. The government may certainly have a compelling interest in protecting operational pipelines to the extent that interference with such infrastructure could endanger those nearby.¹⁷⁵ However, this interest does not justify imposing felony penalties for protesters who simply stray too close to a pipeline easement or who approach construction equipment nearby.

Frequently, as in Louisiana, landowners will not voluntarily agree to grant pipeline companies an easement through their property.¹⁷⁶ As a result, companies often acquire tracts of land along a pipeline route using eminent domain, a process that can be set in motion even before a project has received all necessary permissions.¹⁷⁷ As a result, some courts have granted rights of way through both public and private land to pipeline projects still facing legal challenges from landowners.¹⁷⁸ Under critical infrastructure trespass laws, such land and any adjacent sites being used to house construction materials would immediately become off-limits for First Amendment activities, even by the landowners themselves. The Court’s focus on the specific character and use of property in Marshand even in Lloyd is highly relevant in the gray area created by the Louisiana statute’s “any site” language, due to the unique position pipeline easements occupy on the public-private property spectrum.

The confusion surrounding the arrests of protesters near the Bayou Bridge pipeline highlights the complexity of property rights where pipeline easements are involved. One set of protesters asserted that they had the express permission of the original property owners to be present.¹⁷⁹ Other protesters alleged that the pipeline project’s private security confronted them on a public waterway—public lands being a common feature near fossil fuel infrastructure development.¹⁸⁰ Yet, critical infrastructure statutes make no clear distinction as to when their application begins; in fact, most seem to deliberately expand their reach beyond the narrow boundaries of an easement, such as Louisiana’s decision to include any construction equipment or “any site” where construction is occurring, in addition to any “property containing” critical infrastructure. The gray property lines and resulting vagueness of the boundaries of permission and access under these circumstances differentiate critical infrastructure trespass laws from conventional trespass laws.

2. “Co-conspirator” penalties under critical infrastructure laws implicate a substantial amount of protected activity

Similarly, Oklahoma’s “any organization” language in its conspirator provision casts the net far too wide and implicates legitimate organizing and advocacy activities. By indiscriminately imposing liability on organizations that might be affiliated in any way with individuals charged under these statutes, critical infrastructure trespass bills threaten activities ranging from providing food and water to demonstrators to encouraging, and even organizing, lawful protests against pipelines. This is exactly the sort of “substantial” infringement the Court says it looks for in overbreadth cases.¹⁸¹

The “conspirator” provisions of critical infrastructure trespass laws thus constitute an impermissible restriction on the speech of advocacy organizations that engage in protests against fossil fuel infrastructure as well as a massive burden on those organizations’ members’ rights of free association. Claiborne Hardware directly addresses the arguments made by certain bills’ sponsors, that these bills are only meant to prevent “violent” protests, not peaceful ones: in the Court’s words, an “effort to change the social, political, and economic structure of a local environment cannot be characterized as a violent conspiracy simply by reference to the ephemeral consequences of relatively few violent acts.”¹⁸² Yet, the “any organization” conspirator provisions of critical infrastructure trespass laws cast exactly the kind of broad net prohibited by Claiborne.¹⁸³ An organization faces potentially devastating liability if even one individual involved with an otherwise peaceful, lawful protest steps across the wrong property line—property lines that, as discussed above, these statutes have deliberately rendered vague and overbroad. Convicting an advocacy organization for conspiracy under these statutes would require a holding that directly conflicts with Claiborne.

Advocacy organizations’ work—in organizing and otherwise facilitating lawful protests and in training individuals to responsibly conduct nonviolent, direct civil action—merits protection under the First Amendment. As the Court noted in Button, “‘[f]ree trade in ideas’ means free trade in the opportunity to persuade to action, not merely to describe facts.”¹⁸⁴ The Court emphasized that the NAACP and its members “were advocating lawful means of vindicating legal rights,” which is certainly true for organizations orchestrating peaceful protests of pipelines and pipeline construction sites.¹⁸⁵ States should not criminalize these activities simply because a demonstrator crosses an unclear line in the sand. But even organizations training activists in direct action techniques as a mode of political expression are not inherently undeserving of protection simply because some individuals intend to break a particular law. The training that many grassroots organizations provide for those activists who choose to engage in civil disobedience is critical to ensuring those activists’ safety as well as the safety of others, such as work crews, law enforcement, and other bystanders.¹⁸⁶

3. The overbroad scope of critical infrastructure trespass laws allows for an excessive amount of law enforcement discretion

The breadth of properties implicated by critical infrastructure trespass laws gives law enforcement vast discretion regarding where and when to enforce such laws, thus enabling discriminatory enforcement. This discretion is particularly disconcerting in light of the relationship between pipeline companies, private security forces, and law enforcement.¹⁸⁷

These troubling relationships came under fierce scrutiny during the protests at Standing Rock, where private intelligence and security firms hired by the construction company reportedly aided law enforcement by collecting information on protesters and monitoring the protesters’ activities.¹⁸⁸ In Louisiana, according to local reporting, the St. Martin Parish Sheriff’s Office has allowed nearly five dozen deputies to moonlight for a company contracted by Energy Transfer Partners to provide security for the Bayou Bridge pipeline.¹⁸⁹ As a result, thirteen of the sixteen arrests under the state’s critical infrastructure law in 2018 were made by local sheriff’s deputies approved to work for the pipeline project, and it remains unknown “whether the deputies . . . were working their regular shifts or were moonlighting at the time” of the arrests.¹⁹⁰ In Minnesota, where a critical infrastructure trespass bill successfully made its way through the legislature before being tabled—at least temporarily—by the Governor, law enforcement has allegedly been cooperating with private security firms “keeping tabs” on protesters organizing to oppose the controversial Enbridge Line 3 pipeline.¹⁹¹ In his opinion concurring in part and dissenting in part in Hill, Justice Powell noted that Houston had “made no effort to curtail the wide discretion of police officers under the present ordinance.”¹⁹² In these states, far from curtailing the discretion of police officers, legislatures are turning a blind eye to the fact that members of law enforcement may have an active incentive to exercise their discretion in an impermissible way, by specifically targeting individuals protesting pipeline projects.

B. Courts Should Analyze Critical Infrastructure Trespass Laws as Content-Based Restrictions Motivated by an Impermissible Desire to Suppress Certain Types of Protest

Courts can only see critical infrastructure laws as content-neutral if they deliberately ignore the context in which these laws appeared as well as the express intent of the laws’ authors and supporters. Legislators’ comments regarding the intended purpose of critical infrastructure trespass bills should open the door to content-based challenges to these statutes. As Alan Chen writes, “constitutional analysis must account for the possibility that lawmakers may draft laws in broad terms precisely to obscure an illicit discriminatory legislative purpose.”¹⁹³ In states such as Louisiana and Oklahoma, where legislators are on the record discussing their desire to restrict certain types of protest, the Court’s decision in Wallace illustrates how such comments can pierce the veil of legislative intent that often shrouds facially neutral laws from First Amendment content-based scrutiny. The Court in Wallace examined two factors: the express declarations of a bill’s author, and the demonstration of impermissible intent through an otherwise unnecessary expansion of existing law.¹⁹⁴

For critical infrastructure laws, the bills’ authors and proponents have not been shy.¹⁹⁵ The Court’s approach in both Wallace and Broadrick supports the consideration of statements made by those in authoritative positions to interpret a law’s scope when determining whether or not it implicates protected First Amendment rights.¹⁹⁶ While the laws themselves might not expressly state that they are meant to target protesters, let alone anti-pipeline protesters specifically, courts “cannot be expected to ignore . . . authoritative pronouncements” in determining the breadth and purpose of these bills.¹⁹⁷

In addition to express declarations of intent, a number of states, like Alabama in Wallace, had a pre-existing critical infrastructure trespass statute that encompassed more traditional critical infrastructure sites such as electrical transmission substations and water treatment facilities.¹⁹⁸ Louisiana’s newest law explicitly expanded its existing statute to include pipelines and pipeline construction sites.¹⁹⁹ While Oklahoma did not have a pre-existing critical infrastructure statute, it has both conspiracy and trespass laws already on the books, like every other state that has or is currently considering critical infrastructure trespass bills.²⁰⁰ Coupling this factor with bill sponsors’ on-the-record statements concerning the motivating purpose of critical infrastructure trespass bills, as the Court did in Wallace, establishes a compelling case that the intent behind these laws is to establish an impermissible, viewpoint-based restriction on anti-pipeline protests.

Conclusion

Critical infrastructure trespass laws go far beyond regulating “ordinary” criminal conduct, though these laws try hard to masquerade as simple trespass laws.²⁰¹ The fact that the states proposing and passing these statutes already have trespass laws on the books, along with the statutes’ draconian penalties in comparison to existing trespass laws, underscore that these laws are a far cry from the ordinary trespass statutes, breach-of-the-peace laws, and anti-noise ordinances dealt with in similar cases where the Court has been reluctant to use First Amendment doctrines to overturn facially neutral laws.²⁰² The fact that these statutes focus on conduct, rather than speech, should not blind courts to the openly articulated and constitutionally impermissible motivation behind these laws. If courts look away, they will only further illustrate the extent to which First Amendment jurisprudence in recent decades has left the promise of that Amendment ringing hollow.

The history of this country has been shaped by political expression involving both speech and conduct. Civil disobedience in particular has been vital to American political expression since colonists’ first declarations of resistance to British rule. Since then, from the labor movement²⁰³ to the Civil Rights movement to the anti-Vietnam War movement to the gay rights movement, every major political movement in this country to date has relied upon acts of civil disobedience to convey its message to those in power. Throughout these movements, protestors have submitted themselves to fines, arrest, and even jail time for the variety of misdemeanor charges historically associated with such conduct.

Of course, as long as Americans have practiced nonviolent disobedience, there have been those who have rejected it as a viable means of political expression. When Martin Luther King, Jr. wrote his famous Letter from Birmingham Jail, he was replying to a letter from eight Alabama clergymen criticizing the “unwise and untimely” use of nonviolent civil disobedience by Civil Rights activists, calling upon them to instead seek change through the “proper channels.”²⁰⁴ As discussed throughout this Comment, courts have adopted a similarly hostile attitude towards First Amendment claims involving acts of civil disobedience. Hannah Arendt observed this trend in the 1960s, writing: “the First Amendment neither in language nor in spirit covers the right of association as it is actually practiced in this country—this precious privilege whose exercise has in fact been (as Tocqueville noted) ‘incorporated with the manners and customs of the people’ for centuries.”²⁰⁵ Instead, First Amendment jurisprudence has created too many opportunities for abuse by legislatures creative enough to mask their motives. In his dissenting opinion in Adderley, Justice Douglas wrote: “Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end.”²⁰⁶

These critical infrastructure trespass statutes are imposters—and clever ones. As demonstrated repeatedly by the sponsors of critical infrastructure trespass bills in multiple states, these laws are motivated by an express desire to target pipeline protests and to penalize those who do engage in such protests while discouraging—via the threat of draconian penalties—those who might otherwise be willingto risk not just engaging in direct action and trespass, but even those who might simply participate in lawful protests in the vicinity of pipelines or attend organizing efforts where such protests might be discussed. Such impermissible intent should not be shielded from scrutiny simply because critical infrastructure bills look more like traditional trespass laws that the Court has been reluctant to examine on Frist Amendment grounds.

Perhaps most importantly, if courts hold that critical infrastructure trespass laws are unconstitutional, states will not be left without the laws they need to regulate the “ordinary criminal conduct” of trespass. Protestors who choose to deliberately trespass directly on the land where pipelines are being constructed will face the same penalties activists have faced for acts of civil disobedience throughout this country’s history. Striking down critical infrastructure laws will leave states’ traditional trespass laws in full effect. Laws against criminal assault that protect construction crews and law enforcement would similarly remain in force, as would laws against damaging private property. In other words, as in Wallace and Hill, all of legislators’ alleged concerns in passing these laws would still be addressed by existing law without jeopardizing First Amendment interests.

The first legal challenge to Louisiana’s new critical infrastructure trespass law was filed on May 22, 2019, by individuals arrested protesting the Bayou Bridge pipeline and their community supporters.²⁰⁷ It will no doubt be the first of many filed across the country. Whether or not courts recognize these statutes for what they are will have profound consequences for the future of American protest.

Coming Down the Pipeline: First Amendment Challenges to State-Level "Critical Infrastructure" Trespass Laws

Share this post

Contact Us

Join Our Mailing List