What Are My Rights as a Protester?

All people in the United States have First Amendment rights, including freedom of speech, assembly, and the right to petition the government. These constitutional rights allow people to organize and participate in a peaceful protest. “Protesting is a very American ideal. It’s visionary, and it’s necessary, because protesting often leads to the progress of a nation,” says Jasmine Rand, a civil rights litigator in Miami, Florida. “Protest is often that unheard voice of the masses, fighting for change.”

However, there are legal restrictions on the exercise of free speech — such as when, where, and how a protest can lawfully take place — and it’s important to know about these restrictions if you are planning to join in a protest or demonstration. If you have questions about your rights as a protestor, speak with a civil rights attorney in your area.

Your Protest Rights: Protected vs. Unprotected Speech

The First Amendment to the U.S. Constitution broadly protects freedom of expression, including unpopular speech and even statements considered hate speech. However, the First Amendment has narrowly defined exceptions. Speech that is likely to provoke imminent unlawful action, such as disorderly conduct or violence against a particular individual or group of people, is not protected.

The facts and circumstances of the particular situation determine whether the speech is considered protected or unprotected. For example, if a guest speaker on a college campus mused about the use of violence in silencing political opponents, that would likely be protected. But if the same speaker incited their audience to physically attack another group on campus, the First Amendment would not protect that.

Your Protest Rights: Where, When, and How

In general, you can protest in traditional public forums such as a public sidewalk, park, plaza, or the grounds of a government building — as long as you don’t block car or pedestrian traffic or access to buildings. In some cities, you will need a permit to amplify sound with a megaphone or microphone.

Protesting on private property is another matter. For that, you must get the property owner’s consent. The government may not restrict speech if it takes place on private property with the property owner’s consent.

Check local ordinances to see what types of protests are allowed. Consider consulting with an attorney beforehand to learn more about your rights as a protester. Depending on the relationship between law enforcement and the community, you might want to schedule a meeting with representatives from the local police department to pinpoint the parameters and defuse tensions.

In the 1989 case Ward v. Rock Against Racism, the U.S. Supreme Court outlined a three-pronged test for evaluating the constitutionality of time, place, and manner restrictions on protests:

1. The regulation must be content-neutral
2. The regulation must be narrowly tailored to serve a significant governmental interest
3. The regulation must leave open other channels for communicating the speaker’s message

While the narrowly tailored requirement does not require the time, place, and manner restrictions to be the least restrictive, the regulation must promote a substantial governmental interest. Courts routinely uphold restrictions when they are not a categorical or substantial ban on a traditional method of expressive activity.

How To Protect Yourself and Your Legal Rights in a Protest

“The way in which a protest transpires is really incumbent on the leaders,” says Rand. “It’s important to have a core group of leaders that have training, that know how to protest within the confines of the law and that make it known that it is a peaceful protest and discourages violence.”

There are several steps you can take to protect yourself and your legal rights during a protest.

• Determine what form the protest will take. Protests range from candlelight vigils to rallies and marches. There’s also civil disobedience, which intentionally breaks a law to highlight an injustice. Think Rosa Parks refusing to move when a white man demanded her bus seat in Montgomery, Alabama, in 1955. Ask yourself: Am I interested or prepared to participate in the kind of protest it’s going to be?
• Find out who else is going to be there. Are you joining a known group, like the NAACP, or a group of people with different motives?
• Record the event with your cellphone camera. Taking video will help if you witness police misconduct, violence, or property destruction.  
• Write down important phone numbers. Wylie Stecklow, a civil rights litigator in New York City, recommends memorizing the number of a lawyer or National Lawyers Guild representative or writing it on your arm in indelible ink. You can also ask the National Lawyers Guild to dispatch legal observers to stand watch.
• Consider assembling during the day, before dusk. “People who are not associated with the protest itself, who just want to cause trouble — many times those people come out at night,” says Rod Chapel, a Missouri trial lawyer who has represented hundreds of protesters. “In St. Louis during the Ferguson uprising, there were lots of armed people who did not live in the area who were counter-protesters. They would come out there in their bulletproof gear and with automatic rifles.”

How To Avoid Escalating Tensions at a Protest

Some protests are carefully organized. Others arise organically, says Rand, which makes them harder to control if things get out of hand. It’s important to manage tensions and avoid counter-productive conduct.

For example, while it’s legal to publicly criticize government officials and police officers, that criticism cannot justify assaulting an officer.

“You can’t do anything in a protest that you cannot otherwise do in society,” says Rand. “You can’t scream at somebody get in their face in a very physically aggressive way.” Speech like this that is physically threatening may be considered assault.

Consequences of Not Following Protest Rules

Be prepared for the consequences if you ignore these rules. “You need to think about what an arrest record is going to mean for the rest of your life,” Rand adds. “If you’re charged with a felony, in some places that can interfere with your right to vote, your access to employment, to education.”

You may have to spend the night in jail following arrest. A conviction could mean fines, community service, or even jail time. Free legal representation may be available through the American Civil Liberties Union (ACLU) or NAACP, or a private attorney who takes your case pro bono.

An experienced civil rights attorney may be able to get the charges dropped and expunged. You could even possibly be eligible for compensation a violation of your rights. Look for one with a proven track record of litigating First Amendment cases. Be on the lookout for lawyers without the right experience.

“Somebody who has not been doing this kind of work but is passing around their business card at a protest is somebody to be wary of,” says Mari Newman of Newman McNulty in Denver, Colorado.

Remember that you can also be fired for joining a protest, especially if you miss work or get arrested. But if you’re simply engaging in a legal, off-duty demonstration, your employer would not be justified in firing you, Newman says. And if you think your right to protest has been violated — by a city refusing to issue a permit or a police officer using excessive force — again, you’ll want to talk to an attorney.

Your Rights If a Police Officer Stops You at a Protest

If the police stop you, you should remain calm. If you are not trespassing or violating any ordinance, peacefully engage with the law enforcement officer. You can ask if you are free to leave. If you are free to go, walk away.

If you are under arrest, you have the right to ask why — or you have the right to remain silent and ask to speak with a lawyer. You can make a phone call to your lawyer. It is unlawful for the police department to listen to your call with your lawyer.

You do not have to consent to a search of your belongings, but if you do consent, it can impact your legal rights in court later. Police officers may pat down your clothing if they suspect you may have a weapon after they make an arrest.

You are more likely to have a successful legal outcome following a police interaction and arrest if you document the incident. Take the following steps to protect your rights:

• Write down everything you remember about the interaction, including officers’ badge numbers and patrol car numbers, if possible
• Get the contact information for any witness or passersby who may have observed the incident
• Take photographs or a videotape of the incident
• File a written complaint with the internal affairs division or civilian review board where the law enforcement officer worked

When To Seek Legal Assistance

“The issues will change; the groups of people who are taking to the streets and the sidewalks will change; but the right to protest in this country should never end, because once it ends, so ends our republic as a democratic, free society,” Stecklow says.

It’s critical to know your rights as a protestor. If you have questions about your rights as a protestor, get legal advice from a civil rights lawyer in your area with experience in First Amendment defense and advocacy. They will be able to provide guidance concerning your situation.