Former Prosecutor. Powerful Defense Advocate. Certified in the Area of Criminal Law

What to Know About Your Rights While Protesting

The protests… and riots, which have gone on over the last week bring up a very important legal question: What rights to individuals have to protest against the government? And what are the limitations on that right that may legally imposed BY the government?

We begin, at the beginning, with the 1st Amendment to the United States Constitution. The 1st 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.”

The fact that these are the very first guarantees spelled out in our Bill of Rights tells us just how important they are. They are foundational to the constitution (that which makes up a thing) of the society known as the United States of America.

As with all laws, there must be an interpretation of the precise meaning of these words in different situations. That is the job of the United States Federal Courts, the highest of which is the United States Supreme Court.

We are not particularly concerned today with the first part of the 1st Amendment (the freedom of religion) so let us put that to the side of a moment, and let us take the second part of the 1st Amendment word for word.

“Congress shall not abridge the freedom of speech, or of the press.” – What is speech?

Certainly the saying of a thing or the writing of a thing is considered to be speech.

Does that mean that no one can ever be punished by the government for what they say or write? No it does not.

The 1st Amendment says that “Congress shall make no law… abridging the freedom of speech.” But what about a person who verbally hires a hitman to kill his wife? Is this speech? Yes. Is it protected? Yes. Can the man still be convicted of murder and send to prison? YES. How? Because the law against attempted murder is not a law abridging the freedom of speech. It is a law abridging the freedom of action. One may, by use of speech, act in a way that is illegal. The government is not punishing the speaking, they are punishing the acting. In this case the government may punish a person who attempts to kill another person. The classic law school example is the yelling of “FIRE!” in a crowded theater (when there is no fire). The act of causing a dangerous disruption is illegal, whether that disruption is accomplished through use of speech or through the discharge of a firearm is immaterial.

We can see that the purpose of the First Amendment is the protection of the utterance or publication of ideas. Is the utterance or publication of ideas absolutely protected? No. One may think that it would be. If we define "speech” to be the utterance or publication of ideas, and we say that “No law means NO LAW” as some lawyers have unsuccessfully argued, would we not arrive at a place where the content of speech that is not an independent action would always be protected? No. Why? Because the Federal Courts, including the Supreme Court, have ruled repeatedly that no right is absolute. None of the rights in the 1st Amendment, nor the rights in the 2nd Amendment, nor the rights spelled out anywhere else, are “inalienable” in the way that our Declaration of Independence wrote that the rights to “Life, Liberty, and Pursuit of Happiness” were inalienable. In other words, no law, does not mean “NO LAW.”

A few brief examples of the restrictions on the utterance or publication of ideas include:

  • It is illegal to make classified information public.
  • It is illegal to publish trade secrets and copywrited technical information.
  • It is illegal to publish profanity during certain hours on certain public broadcast media, or to publish “obscene” materials at all.

Any restriction on the right to utter ideas, however, must be “narrowly tailored,” using the “least restrictive means,” to protect a “compelling state interest.” What each of those phrases means, in practice, would take hundreds of pages to cover.

What does this have to do with Protests or Riots? – Quite a bit. Because the content of the speech used by protesters is almost always going to be protected. It is protected even if it is crude and insulting to another group… for example police officers.

In Cohen v. California, 403 U.S. 15 (1971), our Supreme Court held that a man could not be punished for wearing a jacket in public that said “Fuck the draft.” The Court found that such an application of the law could not meet the “strict scrutiny” described above. The same decision was made in Texas v. Johnson, 491 U.S. 397, where the Supreme Court held that a man could not be punished for burning the American Flag.

Let’s get to the specifics then, of what each side can and can’t do:

Can a protester legally shout profanity at a police officer, and are they protected if the officer assaults or arrests them because of their abusive language? – YES.

Whether it is advisable either practically or morally to do so, it is certainly not illegal to hurl invectives at the police. The United States Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969) held that the only speech that was likely to incite “imminent lawless action” could be made illegal as “disturbing the peace.”

At this point we get a little bit “into the weeds” of legal minutia in order to explain how this applies to police officers. It is illegal to disturb the peace. One way of disturbing the peace is to use abusive language that is likely to produce an assault on the speaker. The standard, however, for what is likely to produce an assault from the listener, depends on who the listener is. For example, someone might imagine this standard being met, in a bar, if someone yelled at a drunken biker that they had he had, just recently, exhumed the corpse of his deceased loved ones in order to have carnal relations with them. A person saying those things, in those circumstances, could be arrested for disturbing the peace. It becomes much more difficult to make your case, however, if the listener is a nun, or, (and I actually litigated and won one such case) a school principle. The law is not designed to protect anyone’s feelings. The law if designed to prevent fights from breaking out. All of this leads finally to the point that there is basically nothing that could be said to a police officer that the Court is likely to find to be the kind of “fighting words” that would justify such a professional to hit you, and then arrest you for making them unable to control themselves. That kind of abuse of government power has made even conservative justices blush more than any naught words possibly could.

Can protesters legally block traffic or occupy areas restricted to the public? – NO.

This might seem like an obvious answer, but there are some people who have argued that the “right to peaceably assemble” language of the first amendment should nullify any contrary law. To this there are two answers: First, Any protest that involves breaking the law, even traffic laws, is by definition not “peaceful” as required in the 1st Amendment. Second, a law that says that you can’t walk in the street is not a law that “abridges the right of the people to peacefully assemble.” The same goes for laws saying that some areas, even government owned areas, are not open the public. The law at issue must intend, or at least have an unnecessary inclination to, abridge the right at issue (this is another extremely condensed statement of a legal issue that could be talked about for hundreds of pages).

Can motorists run over people blocking traffic? – IT DEPENDS

The default answer is NO. Hitting a person with a car, even at slow speeds, is an assault that is likely to cause great bodily injury or death. The only legal justification for using force that is likely to cause great bodily injury or death, is in defense of a threat to cause great bodily injury or death to you or someone else. A motorist can NOT legally run over a protester because they are being unlawfully detained and want to leave. If, however, the motorist is in reasonable fear for their life because rioters are pounding on their vehicle and trying to drag them out of it, punching the gas could very well be an act of legally justified self-defense.

Can the government require that protesters have a permit, or that protesters stay in one area, or not use bullhorns, or only have a certain maximum number of people, or not burn anything, or ((insert any number of prior restraint laws on public gatherings here)) ? – MAYBE BUT PROBABLY NOT

The Supreme Court has recognized that the government has a legitimate interest in keeping the peace that justifies certain “time, place, and manner” restrictions on speech, as long as those restrictions are not so burdensome as to prevent the speech from being meaningful.

As to the first question: “Can the city require us to have a permit in order to protest in public?” – MAYBE.

Any person can be on property that is a “traditional public forum” (sidewalks, parks, government plazas) and may speak their mind without a permit if they are not blocking traffic or causing other problems for other people who wish to use the facilities. If, one the other hand so many people will be present that you need to block traffic or close out an otherwise public area to all other uses, the city may be able to require you get a permit to be disruptive of normal use of the space.

How long can they make you wait? IF DEPENDS.

If you want to hold a “pro-gun” or “anti-gun” rally, and the city says you can only do it during the day, and not for another several weeks, that is probably going to get held up. If, on the other hand, the President of the United States does something today that you want to protest about RIGHT NOW, the city probably has to deal with you being on land that is open to the public and making your voices heard, even if you don’t have a permit, even into the early evening hours, even if there are lots of you. If the protest becomes a “public nuisance” however, (blocking traffic, making unreasonable noise around homes, setting buildings on fire, looting) the police may legally declare that this is an “unlawful assembly” (which really is a just a form of “public nuisance” and order the group to disband. If they do not, those who remain can be arrested.

Can the government set a curfew? – MAYBE

The right of the people (that means you and me) to move about freely is another fundamental right. During normal circumstances no city could declare a general curfew and say that everyone needed to be indoors during certain hours. Like all other rights, however, there are limitations. The courts have repeatedly held up city, county, state, or even national curfews under certain circumstances where “emergency conditions” make it a “compelling state interest” to keep people inside. Riots are one such “emergency condition.” During what hours can the government shut people up at home? Only those hours that pose a danger, meaning usually nighttime when it is dark outside. For how many days can they keep this up? Only for as long as the need persists. Who gets to decide this? Immediately it is the head of the executive of whatever jurisdiction we are talking about. That means the mayor, country board of supervisors, governor, or president can invoke relevant emergency legislation to make this call. Eventually, as in all things, the courts will need to decide if the executive order was lawful, and whether anyone arrested for violating such an order can be legally punished.

Can I record the police in public? – ABSOLUTELY YES

The government cannot keep you from recording anything in public view unless your doing so breaks some other law. You may not trespass, for example, in order to get a better vantage point, and you may not obstruct the police in the performance of their duties. This last area gets dicey in some situations. The police have a right to preserve their safety, which means they have a reasonable right to keep people away from them and “control the scene.” If the police are doing this, you cannot enter their scene even if all you want to do is take pictures. At the same time the police may not order people who pose no danger to them to “move along” if they are a safe distance away, and are not doing anything to provoke illegal action against the police.

Public recordings of the police have been a VITAL resource unearthing police misconduct in recent years. Given the police officer “band of brothers” mentality preventing law enforcement from effectively policing itself, citizens should be absolutely encouraged to record police officers in public whenever they can.

NOTE: Some headway has been made in recent years towards public transparency and police accountability with police “body cameras.” This is a positive step, but unless and until the individual police officer has no ability turn the device on and off at opportune moments, such body cameras will not replace the need for a vigilant public.

What can I do if the police are assaulting me or someone else in my group? – THAT IS COMPLICATED

A person has a right to self-defense against the police if the police are illegally assaulting them, including in the performance of a clearly illegal arrest. BE CAREFUL HERE. The fact that charges against a person are not brought, or even that they are later found not guilty, does not mean that the arrest itself was illegal. An arrest is only illegal if the police officer lacks probable cause to believe that the person has committed a crime. A police officer has probable cause to believe that a person has committed a crime if they saw the person commit a crime, if someone else told them that the person committed a crime, or even if the person runs from an area where a crime has been committed.

The police DO NOT have the right to simply arrest anyone in the area, and they do not have the right to arrest anyone who looks suspicious, or who refuses to talk to them or provide them with identification. The unfortunate reality is that sometimes police officers make illegal arrests. Even more unfortunately, the same advice goes as when any other criminal threatens you, which is that the best tactic is usually to comply with their illegal conduct, try to gather as much information as possible, have someone recording if at all possible so that evidence of criminality can be proved later, and then file complaints, lawsuits, and media campaigns once you are safely out of the criminals reach.

What if the police are trying to kill me or my friends?

It enrages and saddens me that this is so common an occurrence that I need to write an answer.

To understand the answer to this question you need to understand the range of police powers. Police have the power to make arrests if they have probable cause that the person they are arresting has committed a crime. The crime at issue does not matter (NOTE: Crime means a misdemeanor of felony. Infractions, such as littering or speeding, are not crimes, but resisting, obstructing, or delaying a peace officer who is trying to detain a person for an infraction like littering, or speeding, is a crime). If a police officer has the right to make an arrest they have the right to use whatever force, including lethal force, is needed to overcome any resistance for the person being arrested, or anyone trying to help them escape the police. HOWEVER, the police are required to only use as much force as is necessary to overcome the arrestee’s resistance and no more.

When the police use “excessive force” they are no longer acting as police officers, but rather are committing an assault and battery like any other criminal. YOU have the right to defend yourself, and anyone else who is being victimized by anyone, including the police. That being said, YOU also only have the right to use as much force as is necessary to end the assault. Unfortunately, if you are forced to fight with a police officer, you will likely be required to use lethal force, or at least force necessary to cause great bodily injury, to end the assault, because police officers in the United States are tragically trained to escalate any conflict to the point where one of you needs to die, rather than to ever step back and reassess the situation.

How can you tell if the police are using more force than is necessary to effect an arrest? – ITS HARD

It is even harder when the suspect is actively resisting a lawful arrest. There are shades of grey and personal disagreements about how much force is necessary in what situation. It depends on the suspect, and how they are acting, and if they may have a weapon. It depends on the location, and the likelihood that the suspect will get help if the police can’t move quickly. It depends on the police officer. A larger, well-armed officer is expected to be able to overcome resistance with less violence than a small un-unarmed officer. It depends how many police are present. Multiple officers can, and must, overcome the resistance of a single person with less violence than a single officer.

If you choose to resist, or help another person resist, and are wrong, you are guilty of committing the crime matching the amount of force you use (from simple assault to murder) with the rather harsh special enhancement allegation that you committed that crime against a peace officer.

By far the most effective advice that anyone could give on how to avoid being hurt by the police is: DON’T FIGHT WITH THE POLICE. Yes, there are extremely rare cases where you may be justified for using force against a police officer. Anyone who had chosen to club Derek Chauvin upside the head while he was murdering George Floyd should have been acquitted of assault on a peace officer for acting in legal self-defense of another. That being said, they would also have immediately been assault by four other Minneapolis Police Officers, who would all have lied later about what happened. Proceed with extreme caution when the police are involved.