Protesting in America is hardly a new tradition, but with recent New York City marches boasting hundreds of thousands of participants, it’s worth knowing how state and city laws affect demonstrations.
A few basics, according to attorneys:
- While permits may not be required in all circumstances, it’s a good idea to get one.
- If a permit-less protest is conducted on a sidewalk, protesters simply need to allow people to pass through.
- While demonstrating outside of a building, as long as you let people in and out of the building, the protest should be lawful.
Protesters do, however, need a permit to use any kind of amplified sound in public, so bringing an object like a bullhorn can be a bad idea. The state also has a law, dating back to 1845, forbidding masked loitering by groups of two or more people not going to a costume party. So leave Guy Fawkes at home.
Ilyssa Fuchs, a civil rights attorney at Cohen & Fitch in New York, recommends that if you’re in charge of a protest, you should know where you can lawfully assemble without a permit, as well as the rules and regulations of those spaces. “Laws cannot prevent content or viewpoint,” she says. “But the government can impose reasonable time, place and matter restrictions.”
Respect civil norms and laws. “If there’s no smoking in the park,” she adds, “then when you come down to the protest, you shouldn’t be smoking. I always also tell protesters to not bring drugs, alcohol or anything that would give police an independent basis to arrest you.” Police, concerned about the possibility of weapons, may seek to confiscate hard objects being used to hold up signs; cardboard tubes are always the best option for a sign’s base, rather than sticks.
Matthew Brinckerhoff, a civil rights attorney at Emery Celli Brinckerhoff & Abady in New York, says the first thing a protester should do is locate the protest’s organizers to see if they’re giving any instructions. He also recommends using materials being distributed by the organizers, because “there may be very specific rules they’ve agreed to … and you should, for the most part, be pretty safe if you’re following them.”
Demonstrators should find and keep legal observers—volunteers from the National Lawyers Guild that wear green hats—within eyeshot. “Their role is to observe and document interactions between police and protesters in demonstrations,” says Samuel Cohen, a civil rights attorney in New York, “in order to provide assistance and information in the future in the event of police abuses.”
“Another big thing is to comply with the directives of the officers—even if you think they are incorrect,” says Fuchs. “If you have a permit that lets you protest in the street, but nonetheless an officer tells you to get on the sidewalk—get on the sidewalk. You can argue later that your rights were violated.”
Cohen notes that police officers must give protesters a reasonable amount of time to leave an area after they broadcast dispersal orders. When that doesn’t happen, it’s usually because a protest has already been going on for a long amount of time. “My personal assessment is that police get a bit sloppier about conducting arrests when they’re tired and bored,” he says.
Of course, adhering to the rules of a well-planned protest is always safest. No matter how well you follow them, however, there’s never a guarantee you won’t be arrested.
“Protesting in America is never risk free,” says Cohen, “even though we have a constitutional guarantee of our right to peacefully assemble and petition the government for readdress of grievances.”