United States: ‘Even in challenging times, civil society needs to be proactive in setting the agenda"

CIVICUS speaks to Nick Robinson, a legal advisor at the International Center for Not-for-Profit Law (ICNL) and lead of their United States Program. ICNL is a civil society organisation that works with governments, civil society and the international community in more than 100 countries to improve the legal environment for civil society, philanthropy and public participation. 

  1. How is ICNL engaging with the impacts on civil society of the current political climate in the United States?

ICNL has engaged with the current political environment by developing a set of initiatives focused on the United States. For example, in one of our central initiatives, the US Protest Law Tracker, and related freedom of assembly work, we analyse and advocate against anti-protest laws and overly aggressive prosecution of demonstrators. In another initiative, we are engaging Congress and other policy-makers about concerns we have regarding recent legislative proposals to strengthen the enforcement of the Foreign Agents Registration Act (FARA). Dating from 1938, FARA requires those who engage in political activities on behalf of foreign principals to register as a ‘foreign agent’ with the Department of Justice. While the Act has traditionally been rarely enforced, its provisions are so broad and vague that if it was implemented it could lead to many civil society organisations (CSOs) having to register as ‘foreign agents’. It is worth noting that ‘foreign agent’ acts in other countries, like Russia, have stigmatised and undercut civil society. In fact, as we’ve documented in a recent report, many of these other countries claim to have based their legislation on FARA.

Other projects include one that provides support to CSOs concerned about politicised government legal compliance actions against them and third party attacks; and a project that aims to help address vulnerabilities we see in the US university space.

  1. What has been the impact on US-based civil society groups in this first year of the Trump Presidency? What rights and groups do you perceive as being in the most danger?

We see a number of types of civil society groups and activities being particularly vulnerable at the present moment. As the prosecution of so-called ‘J20 protesters’ made clear, the use of collective liability is on the rise against protesters. This is deeply disturbing. In the J20 case, which was a case resulting out of protests in Washington DC against President Trump on Inauguration Day (20 January 2017) that damaged property, almost 200 protesters had charges brought against them that could bring decades in jail. The prosecutors never claimed they had evidence that the specific individuals who were charged had damaged property or assaulted anyone; instead, they were trying to hold liable anyone who was present at the protest under a theory of collective liability.

The protesters in the first batch were found innocent on all charges by a jury in December 2017, but it took 11 months to get a verdict. The other protesters charged are still awaiting trial. Keep in mind, this is a prosecution brought not by an obscure local prosecutor, but by the federal government – the Department of Justice. Along with CIVICUS and the Charity & Security Network, ICNL was able to bring our concerns about the freedoms of association, assembly and expression to the Inter-American Commission on Human Rights (IACHR). We brought one of the charged J20 protesters, Elizabeth Lagesse, to give her testimony at an IACHR hearing that anyone interested in the case should check out.

We’ve also seen discriminatory or aggressive actions taken against civil society groups. For example, in September 2017, Representative DeSantis introduced a bill that would have banned Islamic Relief Worldwide from receiving federal funds based on unsubstantiated claims that they had ties to terrorist organisations. ICNL participated in a coalition that spoke out against this bill, which was ultimately withdrawn. However, this is part of a larger pattern of trying to target some groups by claiming they have ties to terrorist groups.

Finally, we’ve seen a number of impacts on civil society because of the administration’s new immigration policies. Organisations have mobilised to fight some of these policies because of the effect they will have on the country and people’s lives, but they also affect the functioning of organisations. Employees or volunteers of many groups are now facing deadlines by which they have to leave the US or are facing the threat of deportation. The visa bans of targeted countries, most of which are predominantly Muslim, have made it difficult, and sometimes impossible, for civil society groups to do something as simple as bring a speaker for a conference from one of these countries.

This isn’t meant to be an exhaustive list, but it gives you a sense of some of the challenges we are seeing.

  1. Can you tell us more about your US Protest Law Tracker, its uses and main findings?

My colleague Elly Page has led ICNL’s efforts on the US Protest Law Tracker. ICNL created it when we realised there was an increase in the number of anti-protest bills being introduced in states across the country. As of the beginning of 2018, 28 states had considered 50 bills that restrict the right to protest since November 2016. Eight of these bills have been enacted, while a number of others are still pending. The tracker provides succinct analysis of each bill and categorises them under topics like ‘campus speech’ and ‘trespass’. Activists, the media, and the public can then search the tracker to find out the latest information about what bills are being considered.

We’ve seen not only an uptick in these laws, but a proliferation in the ways that the right to protest can be chilled. Perhaps most disturbing has been the number of bills that apply theories of collective liability or that increase the penalties for relatively minor offences frequently related to demonstrations – like blocking traffic or trespassing.  We’ve also been troubled by governors declaring states of emergency in response to protests – even in situations where this might make sense, like the white nationalist rally in Charlottesville in August 2017, these powers aren’t being tailored sufficiently. And we are concerned that these powers are beginning to be used whenever there is the mere threat of violence at a protest. This can chill participation in protests.

  1. How big an impact do you think democratic regression in the US is having at the regional and global level?

Other governments are picking up on US rhetoric and actions. For example, in Hungary, Prime Minister Viktor Orbán started using rhetoric around “Hungary comes first”, modelled on President Trump’s slogan “America First”, to justify the passage of a restrictive bill targeting international funding of civil society. President Trump’s practice of labelling certain stories “fake news” has been picked up and used by governments in countries like Cambodia, China, Russia and Syria against media reports documenting their human rights violations. It’s an easy way to delegitimise critics.

It’s important to note though that we don’t just see these challenges in the US, but across several developed democracies. Australia has seen proposals to ban foreign funding to CSOs and limit the amount of advocacy they are allowed to engage in. France has seen the repeated extension of national states of emergency and the use of other national security measures that can undercut a free and open civic space. It’s a bigger challenge than just the US.

  1. What message would you like to convey to international civil society groups working in challenging circumstances?

I would leave them with two thoughts. First, as the US government takes a step back from taking a lead on protecting civil space globally, and I think it is taking a step back, international civil society needs to push governments of other democracies to step up and take on more of a leadership role. There is a vacuum that needs to be filled.

Second, and related, in times like these it’s understandable that many of the responses of civil society are defensive. We need to defend the gains we’ve made over the years. Yet I think it’s also really important that we continue to pursue a vision of the independent pluralistic civil society that we want to create in the world. Even in difficult times we want to be proactive, and set the agenda we want to set – not just react to the latest crisis or concern. It’s difficult to do, but a vital task.

  • Civic space in the United States is rated as ‘narrowed’ in the CIVICUS Monitor
  • Get in touch with ICNL through their website or Facebook page, or follow @ICNLAlliance 

 

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