What Are My Rights as a Protester?

Regardless of any topical relevance, people protest something everyday in this country. The First Amendment gives everyone this right, but there is still a responsibility on the part of the protestor to obey the law. While you are allowed to essentially say whatever you want, there are still provisions that can be instituted by local law enforcement that you would have to obey.

What Are My Rights?

It’s one of the great rights afforded to this country that sets it apart from others. The right to protest. Be it on the gates of the White House or on your representative’s Twitter feed, you can let people know exactly what you think of them in a multitude of ways. However, much the same as Twitter being allowed to ban you for inflammatory remarks, you can go too far when protesting in public.

It’s important to know that the First Amendment essentially protects you from the government; “Congress shall make no law…” to prohibit your speech. However, the owners of private property are allowed to enforce their own rules on this sort of thing. So, with that in mind, what are you allowed to do as a protester?

  • First, depending on how large of a crowd is protesting, you may need a permit. If you are going to be marching in the streets and block traffic, or have a large gathering in a public space, you’ll need to clear it with local law enforcement and get a permit.
  • On top of this, public property is considered to be under equal ownership by all citizens, and thus protests may freely take place there. However, once inside private property – such as, say, the building in which a political rally is taking place – then you as a protester are subject to the rules set forth by the owner or by the politician. If you don’t follow those rules, they would be well within their rights to have the protester removed.
  • Time and place are factors as well. If you decide to use a bullhorn to get your point across at 4 in the morning, you’ll probably be arrested, and it would be right for them to do so. Most cities have noise ordinances, after all. Basically, wait until the afternoon.
  • Even if what you say is controversial, as long as it is of public concern you have every right to say it during a protest. There will be more on this later.
  • As a form of protest, you may also distribute literature such as pamphlets, newspapers or petitions.
  • Violent protests, or protests inciting violence in others, are against the law no matter where the protest may be taking place.

The key word in this section of the First Amendment is “peaceably.” Once any indication of violence is brought into the mix, you as a protester will be asked to discontinue your demonstration. There have been a lot of court cases regarding free speech as it relates to protesting, and if it can perhaps go too far. In fact, much precedent has been set in the law for challenging this sort of thing.

Right to Protest in the Supreme Court

The right to free speech, especially as it relates to protesting, has been a thoroughly debated topic for decades. Many people wonder if there should be one or two limitations on free speech in certain circumstances, and others argue that this is a slippery slope that undermines the intention of the Constitution.

Perhaps the most hotly contested and controversial Supreme Court case regarding freedom of speech in relation to protesting is the 2011 Snyder v. Phelps. Many of you have likely heard of Westboro Baptist Church, the inflammatory cult with a penchant for proselytizing lest all of humankind face eternal damnation just for living their lives. They protested the funeral of Matthew Snyder, a fallen Marine who gave his life in Iraq. Snyder’s father sued Westboro, claiming they protested with the intent of inflicting harm and emotional distress. The court did not see it that way.

In an 8-1 majority, the Supreme Court ruled that these protests involved matters of public concern (for example, homosexuals in the military) and took place on public property. The lone dissenting opinion, issued by Justice Alito, felt that a funeral and a family’s grief were of private concern, and therefore not applicable to First Amendment rights. Alito continued by saying that, while the signs and speech may not have mentioned Snyder’s name, they were still directed at the family and surmounted to personal attacks against them.

A poll on debate.org shows that 80 percent of respondents would be in favor of banning the right to protest at funerals. But perhaps the only thing that allows the Court to function in an objective manner, and hold up the Constitution to the best of their ability, is that they are not swayed by public opinion on topical events. The right to protest made its way to the Supreme Court long before this, however.

It’s likely you have heard some variation on this phrase: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This was a famous line from Justice Oliver Holmes’ unanimous majority opinion in regards to the 1919 case Schenck v. United States. When the U.S. entered World War I, the Espionage Act was signed into law. This made it illegal to dodge the draft, to try and convince others to do the same, or to encourage disobedience among soldiers. Schenck was taken to trial over his distribution of 15,000 pamphlets encouraging prospective soldiers to dodge the draft.

Holmes’ opinion amounted to the consideration of the time during which Schenck was handing out his pamphlets. Holmes himself said that if the U.S. was not at war during the time that Schenck would be allowed to do as he pleases in this regard. However, Holmes referred to Schenck’s actions as presenting a “clear and present danger” to the general welfare of the country. And on these grounds, the Supreme Court upheld the conviction of Schenck.

This is a decision which sparks much debate to this day. Justice Hugo Black rejected Holmes’ famous opinion, on the grounds that individual freedoms could not be obstructed by government goals. Other contradictions have sprung up in Supreme Court cases. In U.S. v. O’Brien, they found that tearing up a draft notice, even if done in protest, is still a violation of Selective Service laws, and that person can be prosecuted. But in Texas v. Johnson, the Court upheld the right to burn an American flag in protest.

What If My Rights Are Violated?

It’s something that we’ve seen happen for more than 50 years; protester’s being handcuffed and dragged away. Fire hoses, batons and pepper spray have all been used against those exercising an inalienable human right set forth by the Constitution. So what happens if you, as a protester, are arrested?

It is a bad idea to fight the cop based on principle. He is not a lawyer nor a judge, and you will not receive due process. Sure, what you’re being arrested for may very well be in violation of your First Amendment rights, but the charge of resisting arrest will still be brought against you.

The Miranda Rights were created for a reason. You may remain silent, you may ask for a lawyer. You also have the right of refusal in regards to a search of yourself, home or car. Without probable cause, law enforcement is not allowed to search you. Should they disregard this, anything they might find will be thrown out as inadmissible. You can ask to speak to a supervisor, and explain that you are not disrupting anyone else and that your actions are protected by the Constitution, so long as those things are actually true.

If you’re just stopped by police for questioning, you may ask if you can leave. If the cop says yes, walk away quietly. If you are placed under arrest, you have the right to know why. Do not sign anything until a lawyer has had a chance to look it over.
There are many issues about which millions of citizens care deeply, and want to make their opinion heard. It is important to understand your rights in this matter, and to understand that this is a right afforded to everyone under the Constitution. We’ve all likely heard this quote from Voltaire’s biography: “While I disagree with what you say I’ll defend to the death your right to say it.” This is always a good principle by which to live.

B. Clausen

A graduate of the University of Kansas, Brian Clausen is the U.S. news reporter for Dopplr. Before joining the team, he created digital content for large companies.

One comment

  • So, if I go to a peaceful protest I should be fine. However, I have seen a lot of protests that have started well and not ended well. If I end up as part of one of these protests but don’t engage in any violent acts can I still be charged? If so, would it be a good idea to hire a defense attorney when this happens?

Submit a comment

Your email address will not be published. Required fields are marked *