Don't I have a constitutional right to protest?
The First Amendment to The Constitution grants "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," among other provisions. But, as with any right, authorities may place reasonable limits on protests if there are legitimate concerns, such as public safety.
Just as your right to free speech doesn't allow you to publish damaging lies about others, you don't have the legal right to protest in a manner that impedes or endangers others or results in the destruction or theft of property. And while the content of your speech can't be censored, per se, any speech that incites imminent violence or illegal acts may be prohibited.
Therefore, your First Amendment right to protest is balanced against the government's responsibility to maintain order and protect the safety and property of others.
What specific limits may authorities place on protests?
In the interest of maintaining the peace and protecting individuals' safety and property, authorities may place restrictions on protest activities in the context of:
- Time — For instance, a jurisdiction (city, state, etc.) may enforce a curfew that would prohibit protests after a certain time.
- Place — Protests on private property are not protected, nor are protests that disrupt official business in government buildings.
- Manner — Authorities may limit the noise level or crowd size of a protest, for example.
Since protest is a public act, public spaces such as sidewalks, public parks, and most streets are considered acceptable places for protesting.
Why would I need a permit if I already have the right to protest?
Spontaneous protests, such as those that took place in Minneapolis and other U.S. cities after George Floyd was killed while in police custody, are protected by the First Amendment (within the limits discussed above). But for protests that are planned in advance, such as the 2017 Women's March, getting a permit can be helpful.
Getting a permit prior to a planned protest ensures that participants have a protected area in which to protest. This may be appropriate for marches, parades, and other events that require the right-of-way on a public street, setting up chairs, or other temporary measures that otherwise may not be allowed. Some states require a permit for any protest that blocks a public street.
Your permit will indicate the time, place, and manner of the protest, which the police are required to honor as long as it remains peaceful and orderly. This includes their responsibility to ensure your safety as you exercise your constitutional rights. So, while you legally don't need to have a permit to protest, it may be practical to do so in certain instances.
What should I bring with me to a protest?
Don't bring anything that could get you in trouble or give police reasonable suspicion, such as a knife, and be prepared to be searched if you choose to carry a backpack or bag. It's a good idea to bring drinking water and perhaps a snack. Also, make sure you have adequate personal safety protection, such as goggles (in case tear gas is deployed) and—in light of the COVID-19 pandemic—a face covering, gloves, or personal protective equipment.
Whether you plan on getting arrested as an act of civil disobedience or anticipate a relatively calm protest, either memorize or write down (on your arm, for instance) the number of a trusted contact in the event you are detained. There are several legal aid organizations and bail funds that offer emergency support for arrested protestors.
It's also a good idea to bring your phone to record potential police misconduct or the actions of provocateurs who may try to discredit the protestors through vandalism or looting.
Am I obligated to disperse if told to by the police or other authorities?
It depends. If a mayor, governor, or other government official pleads with protestors to disperse, you have no legal obligation to do so. Similarly, the police may not require you to disperse if you are acting within your rights and they otherwise have no compelling legal reason to intervene.
With a reasonable amount of notice, the police and government officials may order protestors to leave for certain valid reasons, such as:
- The enforcement of a curfew
- The movement of others is impeded (such as blocking a freeway)
- The protest is on or affecting private property
- There are reports of violence, looting, or vandalism
Can I record the police?
Yes. You have the right to take images (video and still pictures) at a protest in a public place in all states, including actions by law enforcement, as long as you don't interfere with their duties. Furthermore, individuals at a protest consent to having their image taken by virtue of their participation.
Police officers may not require you to delete your videos and pictures or demand that you relinquish your phone or camera (without a valid warrant). While recording images is protected federally under the Constitution, the recording of sound without the subjects' consent varies by state.
This doesn't mean the police won't try to take your recording device or get you to delete images. If they demand your recording device, however, your best option is to comply (in order to avoid further escalation) and then file a police misconduct claim later.
What are the police authorized to do at a protest? What are considered illegal police activities during a protest?
The objective of the police is to enforce the law, which includes your right to peaceably assemble (i.e, protest) in addition to maintaining order and stopping violence or destruction of property. But despite their responsibility to maintain this balance between keeping the peace and protecting your right to voice dissent, police overreach can occur. Using excessive force, provoking violence, or vandalizing property (but blaming it on the protestors) are some obvious examples.
Police overreach also can be much more subtle. For instance, by consenting to certain police requests—specifically those you are not required to fulfill—you may be waiving your rights. Even if an officer suggests that you have no choice but to comply, you're not obligated to let them search your phone or other electronic devices (or delete images) without a valid warrant.
By explaining to the officer that you understand your rights, they'll likely back off from such a request. If an officer forcibly compels you to comply with a request you're not obligated to fulfill (such as grabbing your phone or camera), then it's in your best interests to remain calm, memorize the officer's name and badge number, and file a police complaint later.
Similarly, police may request that you leave the scene of a protest, but you don't have to comply unless there's an official order to do so (typically based on an escalation toward violence or destruction). Also, police may not stop counter-protestors from gathering within sight of the initial protests. However, in the interest of keeping the peace, they may take reasonable measures to prevent potentially violent interactions between different groups of protestors.
What if I'm stopped by the police?
If you're stopped by the police, don't argue or try to resist but remain calm. Ask if you're free to go after they speak with you; if so, you may rejoin the protest or go your own way. If they say you're not free to go and detain you, again, don't argue or resist. However, you may ask them what crime you are accused of committing. They may require you to tell them your name (in certain states), but they may not ask about your immigration status, where you're from, where you're going, or what you're doing.
While the police may not search you without a valid warrant, they may pat you down through your clothing (without a warrant) if they have reasonable suspicion that you're carrying a weapon. If you don't consent to a search and they do it anyway, anything they find will be dismissed.
If you are illegally detained (i.e., they have arrested you without probable cause), then you may file a police misconduct claim or contact a civil rights legal defense organization later. Resisting arrest (even if you feel it unlawful) may lead to unsafe outcomes and is illegal in many places.
What should I do if I am arrested at a protest?
Some protestors expect to get arrested in order to make their point, such as intentionally blocking a gate or roadway as an act of civil disobedience. Other times, protestors expect to disperse peacefully afterward. Whatever the case, it is important to understand that resisting arrest is a crime in many places, even if you know the arrest is illegal.
If you are arrested, make sure you exercise your right to remain silent. If you've memorized or written down the number of an attorney, legal defense organization, or some other trusted contact, then remember you have the right to make that call. If you're booked into jail, do so immediately.
I believe my rights were violated. What are my legal options?
It may be difficult to prove that your rights were violated by the police, so it's important that you gather all of the information you can. This includes the badge number and agency (e.g., county sheriff, city police, state trooper) of any officers involved, photographs or video showing evidence of police misconduct (including any physical injuries), and the contact information of any potential witnesses.
At a minimum (depending on the nature of the violation), you'll want to file a police misconduct claim with the appropriate agency. You may also consider contacting a legal defense organization or other local institution doing work in civil liberties and social justice. If you decide to contact members of the press, keep in mind that anything you say could be used against you if you file a lawsuit later.
If you believe you have a strong case, you might consider hiring an attorney and filing a federal lawsuit claiming violation of your civil rights. Since these types of cases are expensive and difficult to prove, you may also consider joining (or organizing) a class action lawsuit if you know others' rights were similarly violated at the protest. Because of the doctrine of "qualified immunity," which limits police exposure to civil liability, you'll have to prove that they violated your "clearly established" constitutional rights, which is a high bar.
Finally, you may consider your options at the state or local level (which will vary by jurisdiction).
Understand and protect your right to peaceably protest
By thoroughly understanding your rights and responsibilities as a protestor, you'll be able to exercise your constitutional freedoms while minimizing legal exposure. But it's important to realize that protests can be unpredictable, so you'll want to be prepared for all outcomes. If you have additional questions or concerns, talk to a lawyer.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
