Most legal scholars agree that fundamental right in the US, guaranteed by the First Amendment to the US Constitution. But that right isn’t limitless. Exercising it carelessly can lead to physical injury or even arrest.is a
Although federal, state and local governments can’t stop you from protesting based on your cause, they can restrict you to certain times of day, protest locations and even certain forms of protest. Gatherings that devolve into violence, theft or destruction of property are very much not protected and could quickly escalate into a confrontation with law enforcement.
Whether you’re planning on hitting the streets to join a protest in person or simply want to stay informed about your constitutional right to free speech during these trying times, here’s an overview of the rights and responsibilities surrounding public assemblies in the United States.
The information contained in this article is for educational and informational purposes only and is not intended as legal advice. Always consult a lawyer or other qualified legal professional regarding any questions you may have about a legal issue or objective.
The First Amendment and public speech
The right to protest goes all the way back to the First Amendment to the US Constitution, which guarantees the freedom of several forms of expression, including “assembly.” The relevant text reads, “Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
According to the National Constitution Center, the right to assembly protects nonverbal communication (that is, signs and posters), crowd chants and even the more abstract message that’s “conveyed by the very existence of the group” that is protesting. “Petition is the right to ask government at any level to right a wrong or correct a problem,” according to the Freedom Forum Institute, a First Amendment advocacy group.
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Together, this means people in the United States have the fundamental right to join forces and “express your views through protest,” as the American Civil Liberties Union puts it. “However,” the ACLU cautions, “police and other government officials are allowed to place certain narrow restrictions on the exercise of speech rights.” Next, we’ll take a look at what some of those restrictions are.
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Police and government can limit where you protest
According to the ACLU, the safest places to protest — known as “traditional public forums” — include streets, sidewalks, parks and plazas. You can usually protest in front of government buildings as long as you don’t block access or otherwise interfere with operations. Your protest is also protected if it occurs on private property, however you do need the permission of the property owner, otherwise you could be trespassing.
Although protections do exist for “spontaneous protests” that arise unplanned, some cities and states require permits for planned protests, especially those that block off streets. It’s possible to get arrested or be ticketed for “blocking passage,” so it’s important to make sure your group is authorized to gather where it’s going to.
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Whether or not your protest is planned or the protesters have permission to use the location where the demonstration is taking place, police are allowed to issue an order to disperse if they observe a “clear and present danger to public safety” and order, and they can forcibly remove protesters who fail to comply.
If police issue such an order, whether it’s legal or not, or you agree with it or not, you should probably leave. As recent events have shown, sometimes even following all applicable laws for public assembly doesn’t necessarily shield protesters from some of the more frightening countermeasures used to quell demonstrations, like smoke, flash grenades, rubber bullets and .
Curfews can limit when you protest
Despite some challenges to the constitutionality of curfews, during the height of the Black Lives Matter protests, many cities instituted restrictions on how late people were allowed out in public, opening the door for police to then legally clear the streets past those curfew times, typically set around 6 p.m. to 8 p.m.
If you’re participating in any organized demonstration, don’t just rely on organizers to know if and when your city has a curfew. Check with local news sites or your mayor’s or city hall’s webpage, and keep track of the time while you’re out, maybe even setting an alarm on your smartphone to remind you to go home.
You can take photos and video, and so can everyone else
The ACLU says that any time you are “lawfully present in any public space” you have the right to take photos and videos of anything in plain sight, including government buildings and the police. Know, however, that others have that same right, and your image may end up on someone else’s camera roll. Some jurisdictions do have laws regarding audio recordings, which the ACLU says some states have tried to use to outlaw video recordings.
The ACLU stresses that you maintain your right against unlawful search and seizure while protesting, which includes access to your smartphone or standalone camera roll. Without a warrant, police can’t legally confiscate or demand to see your pictures or videos, nor can they delete any of the data on your devices. They can, however, ask you to move or stop what you’re doing if it legitimately interferes with law enforcement operations.
What do I do if I get stopped by the police?
Ask if you’re free to leave and — if they say yes — calmly walk away. If they say no, you can ask what crime they suspect you of committing, but stay calm.
Officers are allowed to pat you down if they suspect you might have a weapon, so let them. At some point they will either place you under arrest or allow you to go.
What if I’m arrested?
Above all else, continue to stay calm. If you’re placed under arrest, you can ask why. Otherwise, say you wish to remain silent and ask for a lawyer immediately. Some states let police ask for your name, but that’s it. Say nothing else, and don’t sign any documents until a lawyer representing you is present.
Do not consent to a search of yourself or your belongings. Once you’re under arrest, police are allowed to search your person, but you don’t have to agree to it.
If you’re booked into a jail, know that police can listen in on your conversation if you call a family member or friend, but not if you phone a lawyer, which you should do as soon as possible.
For more information and resources,while protesting during the coronavirus pandemic. Also, if you are exposed to tear gas while protesting, . Finally, police now are using technology to identify protesters — .
Black Lives Matter. Visit blacklivesmatter.carrd.co to learn how to donate, sign petitions and protest safely.