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.