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These Are Your Rights at a Protest

You can't be punished for what you say, even if it's controversial.

by Gretchen Brown
July 31, 2019 | Living

Protests can escalate. Quickly.

One moment you’re marching with hundreds of people, chanting together for justice. The next, you’re staring down a police officer, as they tell your group to move or risk arrest.

You wonder — is what I’m doing a criminal offense? If I were to be arrested right now, would it be legal?

The First Amendment guarantees the freedom of speech and the freedom of assembly. That means that if you see an injustice, if there’s something you’re passionate about, you’re allowed to speak out about it. And you’re allowed to gather to do so.

In other words, you can’t be punished for what you say — even if it’s controversial. Even if what you’re protesting are the police themselves.

What’s not allowed?

It’s a broad-sweeping right, but it doesn’t apply everywhere.

Police can restrict your speech if they believe you are directly inciting violence.

In addition, not all locations are equal.

“Your rights to protest are by far the strongest in places that are known as public forums,” said Vera Eidelman, staff attorney for the American Civil Liberties Union's Speech, Privacy, and Technology Project. “Places that historically and throughout American history have been held out as places for the public to go out and express themselves.”

Those are places like parks, streets and sidewalks, as well as public plazas in front of government buildings. You’re allowed as long as you’re not blocking vehicle or pedestrian traffic.

Private property is different. You can be kicked off of a private property for protesting there, if the property owner wants it, and even charged with trespassing.

This means that if you’re a college student, you’re legally allowed to protest on campus grounds — as long as it’s a public university. If you’re a private university student, the university can restrict your speech.

Similarly, when you’re protesting on public property, you’re allowed to take any pictures or videos you’d like of the protest, even your interactions with police.

Police officers can’t confiscate, delete or demand to see those images or videos without a warrant, Eidelman said. They can order you to stop taking video if it actually interferes with police activity.

The ACLU even offers an app in several states that you can use to record police activity and submit directly to the ACLU.

On private property, the property owner can limit the photo and video you record.

Is a permit pointless?

Some cities and states require you to get a permit before certain protests. They might have laws limiting protests to a certain time of day.

These types of laws are typically found constitutional, Eidelman said, but they have to “serve the public interest.”

Sometimes, folks organize reactionary protests after breaking news. Police can’t bar you from getting a permit in those short-notice cases.

In St. Paul, Minnesota, police would like you to tell them when you’re planning a protest that blocks a street or takes place in a public park.

But there are plenty of reasons a group might not want to obtain a permit.

“The whole point of protest is to cause enough trouble that people notice you,” said Pamela Oliver, a professor of sociology at the University of Wisconsin-Madison.

“The protesters might say, ‘We don’t want to let you know that we’re going to protest, because that defeats the purpose.’”

Even Martin Luther King Jr., the famous civil rights activist, considered protesting a form of civil disobedience. He was arrested 29 times for protesting, as well as for exaggerated minor charges, such as speeding.

Many times, arrests can elevate a cause.

In 2011, a few protest singers began singing at the Wisconsin State Capitol, every day at noon.

Then the state set new rules: Capitol protest groups of five or more needed a permit. But the singers kept singing anyway, no permit in hand.

In 2013, the Madison Police Department began arresting singers who broke the permit policy.

That’s when the Solidarity Sing Along really caught on. It grew from about 15 singers to more than 50 every day.

“The minute they arrested people, more and more people started singing at the Capitol,” Oliver said.

“If you’re the authorities, you have to consider that trying to stop something often boomerangs and causes more support for the protesters than if you let it be ignored.”

That said, there’s no guarantee you’ll be arrested if your protest is out of line. Oliver said some police departments will allow a “non-permitted” protest in the name of maintaining order. Or, they’ll allow folks to leave peacefully instead of arresting them.

That’s with the knowledge that forcing arrests in some cases might escalate the situation (as some argue happened during the 2014 protests in Ferguson, Missouri, after the fatal shooting of Michael Brown, where police showed up in riot gear and fired rubber bullets at protesters.)

What if you get arrested?

If you’re stopped by a police officer at a protest, you should ask them if you’re free to leave.

“If the officer says yes, then just calmly walk away,” Eidelman said. “If the officer says no, then you are under arrest, and you have a right to ask why.”

You might be arrested for charges like trespassing, breach of peace, traffic obstruction or even disorderly conduct or jaywalking.

Don’t say or sign anything without a lawyer present. While police can pat you down to see if you have a weapon on you, they’re not allowed to search you or your things without your consent.

If you believe the arrest might have been unlawful, the ACLU recommends writing down everything you remember from the incident — including the officer’s name, badge number and patrol car number — gathering witnesses and taking photographs of any injuries sustained during the arrest.

Changing attitudes over protesting

Today, even large protests are sometimes taken for granted. But before the civil rights movement in the 1960s, protests were rare.

High school kids may walk out after wanting a longer lunch hour. Just the idea that you could protest as something to do if you have some concern that’s being addressed, that has really changed,” Oliver said. “It’s just become part of the political culture that people protest.”

The civil rights movement made protesting mainstream. King, seen in his day as a dangerous radical, is now revered as a civil rights hero.

But over the past few years, Eidelman said, there have been a flurry of laws attempting to restrict protesting— once again typecasting protesters as radical miscreants.

As such, the laws around protests continue to change, depending on what city and state you’re in.

Since 2016, there have been 16 laws enacted at the state and federal level limiting protests, according to the International Center for Non-Profit Law.

These laws enacted harsher penalties for protests near gas and oil pipelines, bar public employees from picketing, and heighten penalties for protesters blocking traffic or covering their faces, among others.

In April, the ACLU sued in South Dakota after three new laws were passed aimed at ending what the state calls “riot boosting.” The ACLU says the term is too broadly defined and might even bar social media posts encouraging folks to join a protest.

“There has been more of a trend to miscast protesters as provocateurs or rioters,” Eidelman said. “I hope that doesn’t deter people, especially young people, from going out and protesting.”

Gretchen Brown
Gretchen Brown is an editor for Rewire. She’s into public media, music and really good coffee. Email her at [email protected], or follow her on Twitter @gretch_brown.
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