Guest column/Information about your right to protest
“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.”
— First Amendment
The right to peacefully assemble and join fellow citizens in protest is so fundamental to American democracy that it is protected by the First Amendment of the United States Constitution.
Why is protesting
fundamental to America?
Since the founding of this country, Americans have gathered to protest. From the Stamp Act Protests to the Boston Tea Party, protests started the American Revolution. In 1915, women began picketing the White House and did not stop until the 19th Amendment was passed in 1920, granting women the right to vote. In the 1960s, Martin Luther King Jr. and the Civil Rights Movement organized many protests, rallies and marches. Eventually, these protests inspired Congress to pass the Civil Rights Act of 1964, Voting Rights Act of 1965 and the Civil Rights Act of 1968.
The current generation of Americans continues to protest. In 2012, Trayvon Martin, an unarmed black teenager, was fatally shot in Florida. The shooter was acquitted, causing many to question whether America simply accepted black death. The Black Lives Matter movement was formed in response to this acquittal. In 2014, Michael Brown was fatally shot by the police in Ferguson, Mo. The officer was absolved of all wrongdoing and was never indicted. In response, Black Lives Matter organizers planned their first in-person, nationwide protest and protesters in hundreds of cities participated. The conversation about police brutality and racial injustice continues today. In response to George Floyd’s death in police custody on May 25, protests began around the world to address these issues.
Protesting is an important and necessary tool of the people. Accordingly, these fundamental rights to protest are critical to our democratic nation.
Your rights as a protester
You have a constitutionally protected right to protest – but what does that actually mean? Broadly speaking, you have the right to gather and speak at traditional public forums, such as streets, sidewalks and parks. Protests also can be held at other public properties, such as in front of government buildings. However, these protests cannot block access to the building or interfere with the operation of the building or occupants. Protests can also occur on private property, with the consent of the property owner.
During a lawful protest, the government generally cannot restrict your speech or interfere with your right to assemble. However, some speech is not protected and can, under certain circumstances, be considered a crime. Specifically, speech which encourages imminent violence or other illegal activities is not protected. Likewise, actual violence and criminal activity are not protected, even if it occurs as part of a protest. On private property, the property owner may require you to follow additional rules for what speech is, and is not, allowed.
When you are lawfully gathered in a public space, you have the right to photograph and record anything in plain view. This includes police and law enforcement interaction. If you are on private property, you must follow the rules of the property owner.
Permits are not required to gather in the streets and sidewalks so long as the demonstrations do not block traffic. Without a permit, law enforcement can require protesters to move so as not to delay traffic. Some events, such as marches that require street closures, rallies above a certain size being held in public parks or demonstrations that require large-scale sound equipment might require permits. Permits cannot be denied based on the content or popularity of the protest, nor can a lack of permit be used to prevent protests in response to breaking news events. Engaging legal counsel in order to ensure compliance with local and state laws is prudent.
What should you do if you feel like your rights have been violated?
If you believe your right to protest has been violated, take the following steps:
If possible, record it as it is happening. Be as detailed as possible;
• Note the law enforcement agent’s badge number, patrol car number, agency and any other identifying information;
• Get the contact information of any witness to the violation;
• Preserve all data storage devices (cellphones, tablets, cameras);
• Document any injuries; and
• Contact legal counsel with experience in First Amendment issues pertaining to protest.
How can an attorney help?
Attorneys can help in a variety of ways. If you are organizing a protest, an attorney might be able to help you determine what permits are required and file any that are necessary on your behalf. Experienced legal counsel can help highlight anticipated issues that you might not be familiar with.
Should you believe that your rights were violated at any point, an attorney can help you navigate your options from administrative actions to civil complaints.
(Friedman is a partner in the Cleveland-based criminal defense law firm of Friedman & Nemecek LLC. This column was written as part of the Law You Can Use series presented by the Ohio State Bar Association. The information is intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying the information to a specific legal problem, readers are urged to seek advice from a licensed attorney. Mara M. Hriz, chief law clerk at Friedman & Nemecek assisted with this column.)