Five Tips for Protestors Exercising First Amendment Rights

How to avoid legal trouble while protesting in NYC and elsewhere

By Andrew Brandt | Reviewed by Canaan Suitt, J.D. | Last updated on November 14, 2023 Featuring practical insights from contributing attorneys Samuel B. Cohen, Ilyssa Fuchs and Matthew D. Brinckerhoff

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Protesting in America is hardly a new tradition. The First Amendment, as interpreted by the U.S. Supreme Court and lower federal and state courts, fundamentally protects the right to protest, and recent years have seen mass protests over important political and social issues.

For New Yorkers planning to exercise their free speech in marches or protests, it’s worth knowing how New York state and city laws affect demonstrations. 

Here are a few basics, according to attorneys.

1. Know When You Need a Permit to Protest

While permits may not be required in all circumstances, as a general rule, 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. If demonstrating outside of a building, the protest should be lawful as long as you let people in and out of the building.

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.

Protesting in America is never risk-free, even though we have a constitutional guarantee of our right to peacefully assemble and petition the government for readdress of grievances.

Samuel B. Cohen

2. Know Where You Can Lawfully Assemble

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.”

3. Comply with Civil Laws and Regulations

Respect civil norms and ordinances. “If there’s no smoking in the city 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.”

The police department, 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.

If there’s no smoking in the city park, 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.

Ilyssa Fuchs

4. Follow the Protest Organizer’s Instructions

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 since “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 who 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 [law enforcement] officers—even if you think they are incorrect,” says Fuchs. “If you have a permit that lets you protest in the [public 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 NYPD 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.

There may be very specific rules [the protest organizers have] agreed to… and you should, for the most part, be pretty safe if you’re following them.

Matthew D. Brinckerhoff

And If You’re Arrested: Six Tips

Finally, the attorneys share the following considerations and strategies if you’re arrested during a protest:

  1. “If you believe the arrest is unlawful, don’t argue about it there. Let them handcuff you, be compliant, let them take you downtown; you—or your lawyer—can argue that the arrest was unlawful when you get to court.”
  2. “Have a friend’s or attorney’s phone number memorized.”
  3. “Always go with a buddy. This way, if you are arrested, and they are not, they can be that person to make calls for you.”
  4. “Attempt to get the name and badge number of the police officer, but don’t do anything illegal in order to get it.”
  5. “Any time I go to a protest, I make sure I have a pretty good supply of quarters in my pocket. It’s the only way, typically, to call once you’re in.”
  6. “Even if you are convicted of disorderly conduct in New York, you don’t have a criminal record. It’s the same as if you’d gotten a parking ticket in terms of wrongdoing.”

Find an Experienced Civil Liberties Attorney

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.”

If you need legal help relating to a protest, visit the Super Lawyers directory to find a civil rights lawyers in your area. For more information on this area of law, see our civil rights overview.

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