Joining Fellow Citizens in Protest or Peaceful Assembly Critical to Functioning Democracyby American Civil Liberties Union of North Carolina and the ACLU-NC Legal Foundation December 11, 2017
The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy. But it is also unfortunately true that governments and police can violate this right – through the use of mass arrests, illegal use of force, criminalization of protest, and other means intended to thwart free public expression.
Standing up for your right to protest can be challenging, especially when demonstrations are met with violence. But knowing your rights is the most powerful weapon you have against police abuse. Read on to learn what you need to know before heading out to exercise your constitutionally protected right to protest.
Can my free speech be restricted because of what I say—even if it is controversial?
No. The First Amendment prohibits restrictions based on the content of speech. However, this does not mean that the Constitution completely protects all types of free speech activity in every circumstance. Police and government officials are allowed to place certain nondiscriminatory and narrowly drawn “time, place and manner” restrictions on the exercise of First Amendment rights. Any such restrictions must apply to all speech regardless of its point of view.
Generally, all types of expression are constitutionally protected in traditional “public forums” such as streets, sidewalks and parks. In addition, your speech activity may be permitted to take place at other public locations that the government has opened up to similar speech activities, such as the plazas in front of government buildings.
Not usually. However, certain types of events require permits. Generally, these events are:
- A march or parade that does not stay on the sidewalk, and other events that require blocking traffic or street closure
- A large rally requiring the use of sound amplifying devices; or
- A rally at certain designated parks or plazas
If marchers stay on the sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not maliciously obstruct or detain passers-by.
Yes. You may approach pedestrians on public sidewalks with leaflets, newspapers, petitions and solicitations for donations without a permit. You may also be allowed to set up a table for this purpose, but a permit may be required to do so. These types of free speech activities are legal as long as entrances to buildings are not blocked and passers-by are not physically blocked or maliciously detained.
Yes, and this is also an activity for which a permit is not required. However, picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.
Some local governments have required a fee as a condition of exercising free speech rights, such as application fees, security deposits for clean-up, or charges to cover overtime police costs. Charges that cover actual administrative costs have been permitted by some courts. However, if the costs are greater because an event is controversial (or a hostile crowd is expected)—such as requiring a large insurance policy—then the courts will not permit it. Also, regulations with financial requirements should include a waiver for groups that cannot afford the charge, so that even grassroots organizations can exercise their free speech rights. Therefore, a group without significant financial resources should not be prevented from engaging in a march simply because it cannot afford the charges the City would like to impose.
Yes. Although counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their displeasure. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.
Yes. The government cannot discriminate against activities because of the controversial content of the message. Thus, if you can show that similar events to yours have been permitted in the past (such as a Veterans or Memorial Day parade), then that is an indication that the government is involved in selective enforcement if they are not granting you a permit.
The First Amendment covers all forms of communication including music, theater, film and dance. The Constitution also protects actions that symbolically express a viewpoint. Examples of these symbolic forms of speech include wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction. For example, while sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.
What should I do if my rights are being violated by a police officer?
It rarely does any good to argue with a street patrol officer. Ask to talk to a supervisor and explain your position to him or her. Point out that you are not disrupting anyone else’s activity and that the First Amendment protects your actions. If you do not obey an officer, you might be arrested and taken from the scene.