The right to assemble and express one’s views through protest is guaranteed under the First Amendment of the U.S. Constitution.
Despite this right, police and other government officials can place certain narrow restrictions on the exercise of such rights. Even today state legislatures in various states around the country are seeking to inhibit these rights by attempting to pass legislation making certain protest activities like blocking traffic during protests for example, a felony; while at the same time, seeking to exempt drivers who intentionally strike protestors with their vehicles from criminal prosecution. Such legislative infringements on First Amendment rights will most certainly be challenged in the courts.
Meanwhile, it is important to know your rights before “taking to the streets” in protest.
According to the American Civil Liberties Union (ACLU), your rights are strongest in what are known as “traditional public forums” such as streets, sidewalks and parks. Your right to speak out is also likely on other public property, like plazas in front of government buildings, as long as you do not block access to the government building or interfere with other purposes the property was designed for.
Regarding protests on private property on the other hand, owners can set rules for speech on their property. If it is on your own property, the government cannot restrict your speech; neither can they restrict speech on private property that has the consent of the property owner.
It is also important to remember counter-protesters have the same rights to free speech as those who organize any protest. Police are responsible for treating protesters and counter-protesters equally. Authorities are permitted and encouraged to keep opposing and antagonistic groups separated though they should allow them to be within sight and sound of one another.
In addition, when protesters are lawfully present in any public space, they have the right to photograph anything in plain view, including federal buildings and the police. On private property however, the owner may set rules related to photography or video.
When is a permit required?
Protesters do not need a permit to march in the streets or on sidewalks if marchers do not obstruct car or pedestrian traffic. If you do not have a permit however, police can ask you to move to the side of a street or sidewalk to let others pass or for safety reasons.
There are certain types of events that may require permits including a march or parade that will block traffic or require street closure(s), a large rally requiring the use of sound amplifying devices, or a rally over a certain size at most parks or plazas.
While certain permit procedures require applying well in advance of the planned event, police cannot use those procedures to prevent a protest in response to breaking news events.
Restrictions on the route of a march or sound equipment might violate the First Amendment if they are unnecessary for traffic control, public safety, or if they interfere significantly with effective communication to the intended audience.
In addition, a permit cannot be denied because the event is controversial or will express unpopular views.
Finally, if permit regulations regarding a planned protest require a fee for the permit, a waiver should be allowed for those who cannot afford the charge.
What to do if you believe your rights were violated
As soon as you are able, write down everything you remember, including the officers’ badge and patrol car numbers and the agency they work for, get contact information for witnesses and take photographs of any injuries.
Once you have gathered this information, file a written complaint with the agency’s internal affairs division or civilian complaint board.
Visit aclu.org/sites/default/files/field_pdf_file/kyr_protests.pdf to learn more about free speech rights and protests.