Your Rights to Demonstrate and Protest

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Your Rights to Demonstrate and Protest

Pamphlet

By: National Lawyers Guild

Date: 2000

Source: Your Rights to Demonstrate and Protest: A Guide for Demonstrators, Marchers, Speakers and Others Who Seek to Exercise Their First Amendment Rights. New York: National Lawyers Guild, 2000.

About the Author: The National Lawyers Guild, a membership organization made up of lawyers, professors of law, law students, and legal system workers, is an advocacy group devoted to fighting racism, expanding rights for women and minorities, and protecting civil liberties in the United States.

INTRODUCTION

The First Amendment to the U.S. Constitution guarantees the right to assemble and the right to free speech. The amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Since its ratification in 1791, the First Amendment—part of the first ten amendments to the Constitution that make up the Bill of Rights—has been interpreted via the court system and the U.S. Supreme Court to include the right to protest peacefully in the United States.

U.S. Supreme Court cases such as the 1963 Edwards v. South Carolina case, which stated that African American high schools students engaged in protests were protected by the First Amendment, and the 1966 case Brown v. Louisiana, which held that protestors have protest rights under the First and Fourteenth Amendments, historically protect protest rights. The rulings in other cases placed some limits upon protest rights. For example, the 1977 National Socialist Party of America v. Village of Skokie ruling created requirements for procedures for rejecting groups who wish to stage protests, while the 1994 Supreme Court case Madsen v. Women's Health Center placed limits on anti-choice groups who wished to protest in front of women's reproductive health centers where abortions are performed. The ruling in this case created a thirty-six-foot "buffer zone" around clinic entrances and prohibited protestors from approaching the clinic or any person within that limited space.

While the right to protest is guaranteed in the Constitution and has been defined through case law, limits have also been placed on protestors through government regulation as well as state and local laws. In this pamphlet from the National Lawyers Guild, an organization devoted to civil liberties and rights protection, the right to demonstrate and protest is defined, explained, and presented as a call to engage.

PRIMARY SOURCE

GENERAL GUIDELINES

Q. Can my free speech rights be restricted because of what I want to say—even if it's controversial?

A. No. The First Amendment prohibits restrictions based on the content of speech. However, this does not mean that the Constitution completely protects all types of free speech activity in every circumstance. Police and government officials are allowed to place certain non-discriminatory and narrowly drawn "time, place and manner" restrictions on the exercise of First Amendment rights.

Q. Where can I engage in free speech activity?

A. Generally, all types of expression are constitutionally protected in traditional "public forums" such as public sidewalks and parks. Public streets can be used for marches subject to reasonable permit conditions. In addition, speech activity may be permitted at other public locations such as the plazas in front of government buildings which the government has opened up to similar speech activities.

Q. What about free speech activities on private property?

A. The general rule is that free speech activity cannot take place on private property without the consent of the property owner. However, in California, the courts have recognized an exception for large shopping centers and have permitted leafleting and petitioning to take place in the public areas of large shopping centers. The shopping center owners, however, are entitled to impose regulations that, for example, limit the number of activists on the property and restrict their activities to designated "free speech areas." Most large shopping centers have enacted detailed free speech regulations that require obtaining a permit in advance. Recent court decisions have found that the "shopping center exception" does not apply to single, free-standing stores, such as a Wal-Mart or Trader Joe's.

Q. Do I need a permit before I engage in free speech activity?

A. Not usually. However, certain types of events require permits. Generally, these events include: (1) a march or parade that does not stay on the sidewalk and other events that require blocking traffic or street closures; (2) a large rally requiring the use of sound amplifying devices; or (3) a rally at certain designated parks or plazas, such as federal property managed by the General Services Administration. Many permit procedures require that the application be filed several weeks in advance of the event. However, the First Amendment prohibits such advance notice requirements from being used to prevent rallies or demonstrations that are rapid responses to unforeseeable and recent events. Also, many permit ordinances give a lot of discretion to the police or city officials to impose conditions on the event, such as the route of a march or the sound levels of amplification equipment. Such restrictions may violate the First Amendment if they are unnecessary for traffic control or public safety, or if they interfere significantly with effective communication with the intended audience. A permit cannot be denied because the event is controversial or will express unpopular views.

SPECIFIC PROBLEMS

Q. If organizers have not obtained a permit, where can a march take place?

A. If marchers stay on the sidewalk and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and not unreasonably obstruct or detain passers-by.

Q. May I distribute leaflets and other literature on public sidewalks?

A. Yes. Pedestrians on public sidewalks may be approached with leaflets, newspapers, petitions and solicitations for donations. Tables may also be set up on sidewalks for these purposes if sufficient room is left for pedestrians to pass. These types of free speech activity are legal as long as entrances to building are not blocked and passers-by are not physically or unreasonably detained. No permits should be required.

Q. Do I have a right to picket on public sidewalks?

A. Yes. This is an activity for which a permit is not required. However, picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked. Contrary to the belief of some law enforcement officials, picketers are not required to keep moving, but may remain in one place as long as they leave room on the sidewalk for others to pass.

Q. Can the government impose a financial charge on exercising free speech rights?

A. Increasingly, local governments are imposing financial costs as a condition of exercising free speech rights. These include application fees, security deposits for clean-up, or charges to cover overtime police costs. Unfortunately, such charges that cover actual administrative costs or the actual costs of re-routing traffic have been permitted by some courts so long as they are uniformly imposed on all groups. However, if the costs are greater because an event is controversial (or a hostile crowd is expected)—the courts will not allow such costs to be imposed. Also, regulations with financial requirements should include a waiver for groups that cannot afford the charge, so that even grassroots organizations can exercise their free speech rights. Therefore, a group without significant financial resources should not be prevented from engaging in a march simply because it cannot afford the charges the City would like to impose.

Q. Can a speaker be silenced for provoking a crowd?

A. Generally, no. Even the most inflammatory speaker cannot be punished for merely arousing the audience. A speaker can be arrested and convicted for incitement only if he or she specifically advocates violence or illegal actions and only if those illegalities are imminently likely to occur.

Q. Do counter-demonstrators have free speech rights?

A. Yes. Although counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their views. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.

Q. Is heckling protected by the First Amendment?

A. Although the law is not settled, heckling should be protected, unless hecklers are attempting to physically disrupt an event, or unless they are drowning out the other speakers.

Q. Does it matter if other speech activities have taken place at the same location in the past?

A. Yes. The government cannot discriminate against activists because of the controversial content of their message. Thus, if you can show that events similar to ours have been permitted in the past (such as a Veterans or Memorial Day parade), then the denial of your permit application is an indication that the government is involved in selective enforcement.

Q. What other types of free speech activity are constitutionally protected?

A. The First Amendment covers all forms of communication including music, theater, film and dance. The Constitution also protects actions that symbolically express a viewpoint. Examples of such symbolic forms of speech include wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction. Therefore, while the act of sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.

Q. What should I do if my rights are being violated by a police officer?

A. It rarely does any good to argue with a street patrol officer. Ask to talk to a superior and explain your position to her or him. Point out that you are not disrupting anyone else's activity and that your actions are protected by the First Amendment. If you do not obey an officer, you might be arrested and taken from the scene. You should not be convicted if a court concludes that your First Amendment rights have been violated.

SIGNIFICANCE

Freedom of protest in the United States stretches back to colonial times. During World War I women's rights activists famously protested and picketed in front of the White House gates, demanding the vote for women from President Woodrow Wilson and the U.S. Congress. Union and labor protestors in the 1920s and 1930s, anti-war activists in the 1960s and early 1970s, and anti-globalization activists in the 1990s, all are part of the waves of protest protected by the First Amendment. The National Lawyers Guild outlines the intricacies of protest rights.

The 2001 USA PATRIOT Act included a provision making it a felony to breach a security barrier at an official government event. Even if the President or Vice President is not at the event, Secret Service agents would have the power to arrest protestors or any individual who crossed a security line. Civil liberties groups condemned the provision as a violation of free speech and a tactic aimed at dampening dissent.

In the spring of 2006, millions of protestors in all major cities in the United States engaged in immigration protests. These protestors were demonstrating their opposition to a Republican-sponsored immigration bill that would make the presence of an undocumented worker in the United States a felony. These peaceful protests—by millions of individuals across the length and breadth of the United States—were hailed as an effective use of protest and free speech for political purposes. While "Police and government officials are allowed to place certain non-discriminatory and narrowly drawn "time, place and manner' restrictions on the exercise of First Amendment rights," and while protestors can be charged administrative fees to cover costs to local, state, and federal governments, the First Amendment right to exercise free speech as part of a physical, public protest remains a strong component of civil society in the United States.