Every American has the right to demonstrate peacefully. It’s right there in the First Amendment. But it’s not as simple as showing up with a sign.
There are some measures officials can use to limit protests, and it’s easy to accidentally tiptoe into legally murky territory if you don’t know the specifics.
So before you go, read up.
Timothy Zick is a professor of Government and Citizenship at the College of William & Mary Law School. He specializes in constitutional law and the First Amendment, and he’s written several books about both, including 2009’s “Speech Out of Doors: Preserving First Amendment Liberties in Public Spaces.”
Emerson Sykes is a staff attorney with the ACLU’s Speech, Technology and Privacy Project, who studies free speech protections under the First Amendment. Previously, he worked at the International Center for Not-for-Profit Law to protect free speech in Africa.
1. What are my rights as a protester?
The First Amendment gives Americans the right to assemble peacefully and air our grievances. Historically, we’ve relied on protests to hold power to account – think the March on Washington in 1963 for civil rights or the March for Our Lives demonstration in 2018 for gun control.
The government can’t stop you from peacefully protesting, but they can impose some restrictions on the time, place and manner of the protest – for example, barring protesters from walking onto a public highway or instituting a curfew that affects when protests end, Sykes said.
They can’t block a protest simply because of its content, though.
If protests are planned in advance, organizers may obtain a permit so law enforcement can block off public spaces for them to demonstrate, Sykes said.
There are protections, though, for “spontaneous protests” that spawn in response to current events, like the protests that spawned after George Floyd’s death, he said.
The First Amendment does not continue to protect protests that escalate to violence or the destruction of private or public property, he said.
That’s when law enforcement has the obligation to respond and deescalate threats of violence, he said.
2. Where can and can’t I protest?
A slew of public spaces are OK for protests – sidewalks, city parks, streets and other public forums are usually lawful, Sykes said.
Some states require you file a permit to block off streets, and the right to assembly doesn’t give you the automatic right to march on a public highway, Zick said.
People can be arrested or cited for blocking passage, he said.
On private property, you don’t have the right to assemble.
Zick called it the “no man’s land” in terms of the First Amendment, and police can move you off the property and keep you from demonstrating there.
They may even have that right to move you even if you’re on public property. Special rules apply to government buildings because protests may disrupt business going on inside, Sykes said.
If the protest was permitted, you should be allowed to stay where you are – but leaving the permitted protest site may unintentionally lead you into prohibited places, he said.
3. Can police or local leaders tell us to disperse?
It depends, Sykes said: If a mayor pleads with people to go home, you have no legal obligation to comply.
But police and local government can order you to leave, say, if they’ve imposed a curfew, as long as they give you ample notice to leave safely, Sykes said.
If you stay on the street past a curfew – or if you protest on private property – you may be cited or arrested.
4. What can I record?
You have the right to take photos and videos of what’s happening at a protest in a public place, and you can record police, too.
Different states have different rules about audio recording and sharing that without the consent of the people whose voices you recorded, but the visual portion of videos and photos are always protected by the First Amendment, Sykes said.
If you’re interfering with legitimate police operations, they can ask you to move. It’s best to videotape them from a safe distance.
Police can’t ask you to give them your phone or forcibly confiscate it without a search warrant, which they would’ve needed to obtain from a judge, he said.
If they demand your phone, though, comply to avoid escalating the confrontation. Afterward, you can file a police misconduct complaint or contact the ACLU, he said.
5. Someone took a picture of my face at a public protest. Is that allowed?
At a public protest in the United States, you consent to a photo just by being there. Anyone who photographs you protesting in a public place may have a right to use your image, and you may see images of yourself in the media or online, Zick said.
6. What should I pack to stay safe at a protest?
Pack light, Sykes said. He suggests you bring water and a snack at minimum. If you bring a bag, prepare for it to be searched.
In a pandemic, wearing a mask can keep you from breathing in droplets containing coronavirus. Coming within close contact of other protesters could expose you to their spit or sneezes, which may carry the coronavirus.
And if you fear you’ll be arrested and will need legal help, memorize or write on your arm the number to a local or national law organization that could assist you in getting out of jail and handling your case afterward, Sykes said.
7. What can – and can’t – police do during a protest?
It’s the responsibility of police to protect your right to peaceful assembly.
They’re also empowered to uphold law and order, which gives them broad authority to deescalate threats of violence how they see fit.
How they deescalate that violence depends on local laws and the circumstances under which they use them, which can be difficult to prove in court if you believe they used force unlawfully, Zick said.
Like Sykes said, police do not have the right to search your phone or personal devices without a warrant, which only a judge can grant them.
They also don’t have permission to delete content from your phone, so if they tell you to delete a video you took or delete it themselves, they’re in the wrong, he said.
8. What can I do if a police officer stops me?
Stay calm. Don’t resist.
Ask them if you’re free to go after speaking with them, Sykes said.
If they say yes, calmly walk away and rejoin the protest if it’s safe to.
If they say no, and they detain you, don’t resist and keep calm, Sykes said. Ask them what crime you’re suspected of committing.
9. What can I do if I get arrested?
Some people get arrested intentionally as a form of civil disobedience. But whether or not you planned to get handcuffed, you shouldn’t resist arrest, Sykes said.
It’s the best chance you have to stay safe.
During your arrest, you can remain silent, as is your right, Sykes said.
In some states, police are permitted to know your name if they ask, but they don’t have the right to know where you’re from or your citizenship status, he said.
You can also ask for a lawyer – remember that number you held onto for legal support.
If you’re booked into jail, call a lawyer immediately, Sykes said.
Police can’t listen in on your call if you’re phoning a lawyer, but they can listen in if you’re calling a friend or family member, so be aware, he said.
10. What can I do if I feel law enforcement or other officials violated my rights?
You can sue for civil rights violations.
You’re allowed to do that under Section 1983 of federal law, which covers violations by state actors and police who violate First Amendment rights to assemble, speak and petition.
Some protesters file large class-action suits that are occasionally successful, and sometimes authorities can pay damages when they decide litigation isn’t worth it, Zick said.
But qualified immunity can shield officers from civil liability if they didn’t violate a clearly established law, he said.
Qualified immunity is a legal doctrine that protects police officers accused of interfering with constitutional rights from being liable unless they violated a clearly established and defined law.
The lines are blurred at protests of what police are allowed to do and what constitutes overreaching, so “clearly established” constitutional rights are difficult to determine, Zick said.
In this way, many police officers are protected by qualified immunity, Sykes said.
“Those cases are difficult to win and expensive in terms of personal time and resources,” Zick said. “Naturally, I think a lot of the protesters whose rights may well have been violated may not pursue cases.”
11. Can my workplace fire me if they find out I attended a protest?
That depends on the contract you made with your employer when you were hired, but yes, it’s possible, Sykes said.
You have stronger constitutional protections for what you do outside of work, but depending on what you agreed on when you were hired, a company may be able to terminate your employment, he said.