One of the things that distinguish the United States from other countries — particularly those known for not giving their citizens many freedoms — is the right to protest and assemble peacefully. No matter what kind of political administration is in power at any given time, there’s a good chance at least some people will disagree strongly enough to want to make their voices heard.
Under the First Amendment, individuals have a right to do just that — speak up for their beliefs in a public forum, and speak out against those responsible for making policies that contradict or undermine those beliefs.
However, the right to protest or demonstrate is not absolute. There are important things to keep in mind before you hit the sidewalks or pavement with a protest sign.
1. The Government Can Put Restrictions on the Right to Assemble
When it comes to the First Amendment, it’s common to hear people say things like, “It’s a free country — I’ll say whatever I want!” However, the First Amendment has limits. In fact, the U.S. Supreme Court cases that put restrictions on the First Amendment take up a great deal more paper than the Amendment itself.
While you definitely have a right to protest and assemble peacefully, courts have held that the government has a competing interest in ensuring public safety. The government also has a right to keep functioning, which means protests can’t interfere with government functions like keeping the public safe and running the nuts and bolts of government.
One of the ways the government regulates protests and assemblies is by setting restrictions on the time, place, and manner of the protest. However, courts have ruled that any restrictions must be narrowly tailored to protect free speech.
2. You Might Need a Permit
Another way the government can regulate assemblies and protests is by requiring protestors to obtain a permit before they can assemble. If you consider the area immediately around the White House and other federal government buildings, it’s easy to see why there is a need for permits.
Without some kind of schedule, you might end up with a colossal congestion of people that could block traffic and shut down government functions.
At the same time, protestors generally don’t need a permit to protest in public places like parks and sidewalks. This lack of requirement is especially true for smaller groups that don’t take up a vast amount of space.
No matter where you live, it’s best to check with your local government and go through any necessary steps for obtaining a permit before you launch a protest or gathering.
3. You Can’t Incite Imminent Lawless Action
The First Amendment gives people a broad right to speak up, but that right isn’t unlimited. As a Reuters report notes, the U.S. Supreme Court generally has a high bar for what constitutes unprotected speech. In other words, the concept of “free speech” is quite broad, and courts are usually reluctant to curb speech — even if some people disagree with it or are offended by it.
This area of law can stir up strong opinions, as there is sometimes a fine line between protected speech and speech that leans toward inciting violence. For example, the Supreme Court has upheld the free speech rights of a Ku Klux Klan member, as well as the protest and speech rights of members of the Westboro Baptist Church, who have become infamous for their anti-LGBT protests.
However, the Supreme Court prohibits speech that is likely to result in “imminent lawless action.” Free speech experts say the emphasis should be on “imminent,” meaning the lawlessness must be certain to occur right away.
4. Be Careful with Private Property
When most people think of free speech and the right to assemble, the protections with which they’re familiar apply to “government actors” and public property — not private property or private companies.
As many people have found out the hard way, you can certainly exercise your free speech rights online, but your employer also has the right to fire you for it if the comment or content falls outside employment and labor law protections.
Likewise, private property owners have the right to refuse to allow protestors to enter their property. This rightful ownership is why it’s a good idea to make sure any area you want to gather in is open to the public or owned by the government.
5. CounterProtesters Have Rights Too
No matter what your beliefs, it’s almost guaranteed you’ll find someone who vehemently disagrees with you. In many cases, protests and assemblies tend to draw competing protests and assemblies made up of people with opposing beliefs.
These counterprotesters are protected by the same First Amendment rights, even if their message is hateful. On the other hand, they’re required to abide by the law just like everyone else, which means they can’t engage in speech that’s likely to bring about imminent lawless action.
Dallas Criminal Defense Attorney John Helms