What Tennessee's PEACE Act means for free speech
Tennessee's new Protecting Everyone Against Crime and Extremism Act (PEACE Act) law limits approaching police officers and is a threat to First Amendment freedoms. (Photo: John Partipilo/Tennessee Lookout)
A new Tennessee law with the unassuming acronym 'PEACE' might appear, on the surface, to be a mundane update to the state's criminal code. But tucked into the legislation's language is a clear and deliberate threat to the First Amendment freedoms of Tennesseans.
On Friday, Gov. Bill Lee signed Senate Bill 30, the Protecting Everyone Against Crime and Extremism Act (PEACE Act).The law makes it a criminal offense to leave 'unsolicited flyers' on public or private property, hang signs from overpasses and bridges, ride in the back of a box truck, refuse to give one's name or give a false name to law enforcement, and approach within 25 feet of an officer after being ordered to stop or retreat.
While these provisions might sound like routine penalties for littering, limits on approaching police officers and tweaks to law enforcement powers, they raise serious First Amendment concerns.
One of the most troubling aspects of the law is its expansion of the state's intimidation law to criminalize acts like handing out flyers or trespassing if done with the 'intent to intimidate' someone from exercising their rights. This language is dangerously vague, and that's exactly the problem. 'Intent to intimidate' is not clearly defined and can easily be used to target protestors, demonstrators, or anyone expressing dissent in a way that makes someone uncomfortable.
Bill expanding Tennessee law enforcement powers during protests draws pushback
Additionally, the law classifies dropping 'unsolicited flyers' on private or public property as 'littering,' which means a political pamphlet left on a doorstep could potentially lead to a criminal charge. The Supreme Court has long held that leafleting is protected speech, not trash. In Lovell v. City of Griffin (1938), Schneider v. State (1939), Talley v California (1960) and Watchtower v. Village of Stratton (2002), the Court affirmed that the right to distribute printed material, especially for political or religious purposes, lies at the heart of the First Amendment.
The Tennessee law's new provisions also prohibit approaching within 25 feet of a law enforcement officer after being ordered to stop. Although the amended version narrows this to active crime scenes, traffic stops, or public safety threats, it still violates the public's right to record and monitor police conduct in public spaces. Federal courts have increasingly recognized this right as an essential check on government power. In Glik v. Cunniffe (2011), the First Circuit wrote that '[t]he filming of government officials engaged in their duties in a public place… fits comfortably' within the principles of protected First Amendment expression.
As if these aspects of the law were not concerning enough, it also grants police broader authority to arrest individuals for misdemeanors not committed in their presence and provides legal immunity to officers who decide later not to issue citations for these alleged offenses. In combination with the new criminal categories for expressive conduct, this gives law enforcement a wide berth to intimidate and arrest peaceful demonstrators, especially in politically charged settings.
Legal advocates have tracked similar efforts around the country where these minor offenses are not used against litterers and loiters but as a means to shut down protests. This would give the government wider latitude to target speech that the party in power doesn't like, from climate activists to pro-life protestors to labor union strikes.
Supporters of this law may argue that these provisions promote public order or protect communities from hate. But the First Amendment does not allow the government to punish speech simply because it is offensive or hateful. The Supreme Court has repeatedly held that even the most disturbing or bigoted speech is protected unless it is intended and likely to provoke imminent lawless action, amounts to a true threat, or defamation.
Laws that target speech based on the speaker's motive or viewpoint and give broad discretion to law enforcement violate fundamental constitutional principles. The PEACE Act presents significant risks of overreach and is likely to face constitutional challenges in court.
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