Ten Things Every Protestor Should Know
Protesting is one of the foundations of American democracy. It is a right given to the people which distinguishes our “democratic” society from almost every other type of government.
The First Amendment to the United States Constitution provides 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 to peaceably to assemble, and to petition the Government for a redress of grievances.” It is from this Amendment that we get the genesis of our freedom of speech, religion, press and the right to protest.
The First Amendment is not absolute. The government may adopt or implement certain restrictions on speech. As social and political issues are at an all-time high, it is important to have a starting point as to what your rights are and what the government may or may not do to interfere with your rights.
You should know, the First Amendment doesn’t just cover speech. It also covers symbolic actions and activities used to express a viewpoint.
You may be equally shocked to know that, in fact, there is no “right to privacy” in the constitution. The so-called right to privacy is an evolutionary constitutional principle arising out of, mainly, the Fourth Amendment.
The Fourth Amendment provides that “[t]he right of people to be secure in their persons, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
With that in mind, here are 10 things you should know as a protestor to advocate for your social issue(s) safely and lawfully.
1. Depending on where you protest will determine what abilities the government has to control your demonstration. If you are in a Designated Public Forum, the government may enact restrictions but they must be both subject matter and viewpoint neutral. Alternatively, the government regulation must be narrowly tailored to further a compelling governmental interest. If the restriction is a time, place or manner restriction, the regulation must only be narrowly tailored and need not be the least restrictive means. If you are in a Limited Public Forum or a Nonpublic Forum, the regulation must be reasonable and viewpoint neutral. This means that the government may regulate based on the speech as long as the regulation is reasonably related to the purpose served by the property and the regulation is not designed merely to suppress a particular point of view. Consider private property with express permission or public areas such as sidewalks, parks, and streets.
2. Speech that is inflammatory is usually constitutionally protected unless the speech is directed to inciting or producing imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444 (1969).
3. Offensiveness is not enough for a government to curtail speech. Cohen v. California, 403 U.S. 15 (1971); Nationalist Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).
4. You have a right to record police officers on video/audio/photo engaging in their official duties but you may not interfere with them. They may not search your cell phone or camera without a warrant based on probable cause issued by a judge. Smith v. City of Cumming, 212 F.3d 1132 (11th Cir. 2000). In Florida, you should be aware that if there is an expectation of privacy, the law requires both parties to consent to being recorded. Police officers performing official duties do not have an expectation of privacy. Further, if the phone or camera is out in the open, such consent may be implied.
5. Police may pat down your person for weapons if they have reasonable suspicion that you are involved in or are about to commit a criminal act.
6. You may be required to obtain a permit to march or protest depending on where and when you are protesting and the permit cannot be unreasonably denied. For example, if you are going to interfere with traffic, you must apply for a permit.
7. You may NOT interfere with legitimate law enforcement operations.
8. You may distribute flyers but cannot do so in a way that affects the public traversing sidewalks or entrances to buildings.
9. Remember, counter-demonstrators also have the same rights as you.
10. It is important to know your state and local laws regarding an order to disburse. Failure to abide by a lawful order to disburse may result in arrest for civil disobedience.