Freedom of speech is engraved deep into the foundation of the United States.
Not only do Americans have the right to speak freely, but under the First Amendment, people are allowed to assemble peacefully to flex their freedom of speech.
In other words, protesting is a constitutional right.
However, there some restrictions to your rights as a protester.
Here's what you can and can't do, according to the American Civil Liberties Union (ACLU).
- say whatever you want, no matter how controversial the message is, as long as it's not calling for violence or harm against others. For example, slander, libel and threats aren't protected speech.
- peacefully protest in a public forum such as public sidewalks, parks and plazas. You can also protest in front of areas the government has opened up for public speech such as in front of a government building. Keep in mind, some locations may require permits. For example, if a group plans on a march that requires street closures or wants to use sound speakers it may require a permit.
- photograph and take video of anything in plain view at a protest. This includes federal buildings, transportation facilities and the police. Police officers do NOT have the right to confiscate videos or photos or ask to see them without a warrant. Police also can't delete photos or videos under any circumstances. However, police can ask citizens to stop activity if it's legitimately interfering with police work and it is possible courts can approve the seizure of a camera if it contains evidence of a crime unrelated to the police themselves.
- distribute flyers and literature in public but it must be free of obscenities and defamatory language. Flyers also can't incite violent or disruptive behavior.
- remain silent if you get arrested. You don't have to talk to law enforcement and can ask for legal counsel upon arrest. You also have the right to three phone calls immediately and can ask for two additional calls if you have a minor who needs childcare. If you remain in custody, a judge must review your case within 48 hours and you must be taken to court within two business days.
- block access to sidewalks or buildings. You also can't trespass on private property to protest without permission.
- be searched by police. However, law enforcement can pat down your clothing to make sure you don't have a weapon.
- physically disrupt a counter-protest.
- interfere with medical staff or patients at any medical clinic or places offering reproductive health services. You can't block the entrances to medical buildings. The same laws apply to places of worship.
If you plan on participating in civil disobedience, which is the active refusal to comply with the law as a form of protest, be aware you may have encounters with law enforcement and risk getting arrested.
Police do have the right to break up a protest if it becomes disruptive or incites a riot. Officers also have the right to use reasonable force depending on the circumstances. Trained officers should know what excessive force is.
Police also have a right to take photo or videos that are available to the public.
Police can arrest you and charge you for unlawful protesting if they see necessary. Here are some laws officers may choose to charge you with for breaking, according to the ACLU:
- Resisting arrest or delaying a peace officer (Penal Code Section 148)
- Disrupting a public meeting (Penal Code Section 403)
- Riot and unlawful assembly (Penal Code Sections 404-408)
- Failure to disperse (Penal Code Sections 409)
- Disturbing the peace (Penal Code Section 415)
- Trespassing (Penal Code Section 602)
- Refusing to obey a peace officer who is enforcing the Vehicle Code (Vehicle Code Section 2800(a)
- Attempting to free a person who has just been arrested (Penal Code Section 405a)
- Using force, a threat of force, or physical obstruction to interfere with a person’s right to reproductive health services or to attend a place of religious worship (18.U.S.C. § 248)
If you do get arrested while attending a protest, it's best not to resist, even if you believe you're innocent. You do have the right to ask why you're being arrested.
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