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Tennessee passed some legislation yesterday in what appears to be a thinly veiled attempt to come down hard on protestors in the capitol. The most notable is that it is now a felony (with severe penalties) to erect a tent on state property between the hours of 10PM and 7AM. Is there any mechanism to prevent the legislation of arbitrarily severe punishments for crimes like this or is there precedent for overturning something like this in the court system?

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The law is part of a larger bill modifying punishments for various crimes. For example it increases the penalty for vandalizing government property, creates offenses for assault on a first responder carrying out their duties (depending on the severity of the assault), increases the penalty for aggravated rioting, obstruction of highways and so on. It also clarifies that being assembling or being present at the scene of a riot is not an offense. The only new crime created is assault on a first responder. Unauthorized camping on state property was already a crime: this is an increase in the penalty for committing that crime. It does have a requirement for notice and continued violation for 24 hours, unlike vandalism where if you do the deed, you can be arrested.

The courts have not held that the First Amendment protects the right to trespass, assault or commit vandalism. The only viable avenue for a legal challenge is that the punishment is cruel and unusual (too severe). A change from Class A misdemeanor to Class E felony is the smallest increment in penalty. The state will argue that the increase in penalty is necessary to maintain public order, and that it is not arbitrary or capricious, because there have been many recent violations of the law. In general, when laws are frequently disobeyed, it is legal for the government to increase the penalty for breaking the law in order to achieve compliance.

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  • I guess my objection to this response might go too far into the territory of political opinion, but it seems clear that this is targeted at protestors, and holds jail time of up to 6 years, $3k+ fines, and a minimum holding period of 12 hours without bail (specifically for protestors). In my mind, specifically targeting protestors with harsher (and unusual, in the case of mandatory 12 hour holding) penalties is a bridge too far.
    – DragonBobZ
    Aug 14 '20 at 20:44
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    I agree that it is motivated by events related to the protests, but nothing in the law specifically targets protests – that would be a First Amendment problem. It does so indirectly, because most vandalism of government property is part of a protest, most rioting is part of a protest etc. Do you think that rioting is intrinsically a First Amendment protected activity?
    – user6726
    Aug 14 '20 at 20:57
  • I disagree that the "rioting" label applies in any way to the situation, but that protests will be labeled as "riots" whenever it is politically convenient to do so.
    – DragonBobZ
    Aug 14 '20 at 21:32
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    @DragonBobZ Except where specifically allowed by law or precedent, the courts do not delve into the motivations of legislatures. They deal with the laws and implementations themselves. At the federal level this is derived from the Speech and Debate clause; Tennessee (see section 13) and most if not all other states have similar clauses. So legislatures can totally pass a law with the express motivation of violating certain constitutional (state or federal) rights, but if the law in its own terms is constitutional then its fine. Aug 15 '20 at 0:21
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    @DragonBobZ This seems to be a solid law review article on the applicability of legislative purpose to court analysis. They used to almost never delve into the purpose, but modern jurisprudence is more willing to tread there. Race-based motivations in particular are something of a modern day poison pill, thanks to express constitutional prohibitions. Aug 15 '20 at 0:26

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