Know Your Rights: Demonstrations and Protests
Can my free speech be restricted because of what I say — even if it is controversial?
No. The First Amendment prohibits restrictions based on the content of speech.However, this does not mean that the Constitution completely protects all typesof free speech activity in every circumstance. Police and government officials areallowed to place certain non-discriminatory and narrowly drawn “time, place andmanner” restrictions on the exercise of First Amendment rights.
Where can I engage in free speech activity?
Generally, all types of expression are constitutionally protected in traditional
“public forums” such as streets, sidewalks and parks. In addition, your speech
activity may be permitted to take place at other public locations which the
government has opened up to similar speech activities, such as the plazas in
front of government buildings.
What about free speech activity on private property?
The general rule is that free speech activity cannot take place on private property
absent the consent of the property owner. There may be exceptions in
Massachusetts for large shopping malls, but these generally apply only to
obtaining signatures relating to elections.
Do I need a permit before I engage in free speech activity?
Not usually. However, certain types of events require permits. Generally, these
(1) a march or parade that does not stay on the sidewalk and other events that
require blocking traffic or street closure;
(2) a large rally requiring the use of sound amplifying devices; or
(3) a rally at certain designated parks or plazas, such as the Boston Common.
Many permit procedures require that the application be filed several weeks in
advance of the event. However, the First Amendment prohibits such an advance
notice requirement from being used to prevent rallies or demonstrations that are
rapid responses to unforeseeable and recent events. Also, many permit
ordinances give a lot of discretion to the police or city officials to impose
conditions on the event, such as the route of a march or the sound levels of
amplification equipment. Such restrictions may violate the First Amendment if
they are unnecessary for traffic control or public safety, or if they interfere
significantly with effective communication with the intended audience. A permit
cannot be denied because the event is controversial or will express unpopular
If organizers have not obtained a permit, where can a march take place?
If marchers stay on the sidewalks and obey traffic and pedestrian signals, their
activity is constitutionally protected even without a permit. Marchers may be
required to allow enough space on the sidewalk for normal pedestrian traffic and
may not maliciously obstruct or detain passers-by.
May I distribute leaflets and other literature on public sidewalks?
Yes. You may approach pedestrians on public sidewalks with leaflets,
newspapers, petitions and solicitations for donations without a permit. Tables
may also be set up on sidewalks for these purposes if sufficient room is left for
pedestrians to pass. These types of free speech activities are legal as long as
entrances to buildings are not blocked and passers-by are not physically and
maliciously detained. However, a permit may be required to set up a table.
Do I have a right to picket on public sidewalks?
Yes, and this is also an activity for which a permit is not required. However,
picketing must be done in an orderly, non-disruptive fashion so that pedestrians
can pass by and entrances to buildings are not blocked.
Can government impose a financial charge on exercising free speech rights?
Some local governments have required a fee as a condition of exercising free
speech rights, such as application fees, security deposits for clean-up, or
charges to cover overtime police costs. Charges that cover actual administrative
costs have been permitted by some courts. However, if the costs are greater
because an event is controversial (or a hostile crowd is expected) – such as
requiring a large insurance policy – then the courts will not permit it. Also,
regulations with financial requirements should include a waiver for groups that
cannot afford the charge, so that even grassroots organizations can exercise
their free speech rights. Therefore, a group without significant financial resources
should not be prevented from engaging in a march simply because it cannot
afford the charges the City would like to impose.
Do counter-demonstrators have free speech rights?
Yes. Although counter-demonstrators should not be allowed to physically disrupt
the event they are protesting, they do have the right to be present and to voice
their displeasure. Police are permitted to keep two antagonistic groups separated
but should allow them to be within the general vicinity of one another.
Does it matter if other speech activities have taken place at the same location in the past?
Yes. The government cannot discriminate against activities because of the
controversial content of the message. Thus, if you can show that similar events
to yours have been permitted in the past (such as a Veterans or Memorial Day
parade), then that is an indication that the government is involved in selective
enforcement if they are not granting you a permit.
What other types of free speech activity are constitutionally protected?
The First Amendment covers all forms of communication including music,
theater, film and dance. The Constitution also protects actions that symbolically
express a viewpoint. Examples of these symbolic forms of speech include
wearing masks and costumes or holding a candlelight vigil. However, symbolic
acts and civil disobedience that involve illegal conduct may be outside the realm
of constitutional protections and can sometimes lead to arrest and conviction.
Therefore, while sitting in a road may be expressing a political opinion, the act of
blocking traffic may lead to criminal punishment.
What should I do if my rights are being violated by a police officer?
It rarely does any good to argue with a street patrol officer. Ask to talk to a
supervisor and explain your position to him or her. Point out that you are not
disrupting anyone else’s activity and that your actions are protected by the First
Amendment. If you do not obey an officer, you might be arrested and taken from
the scene. You should not be convicted if a court concludes that your First
Amendment rights have been violated.
A wallet-sized card containing more practical suggestions about encounters with
police officers is available in English and Spanish from the ACLU of
Massachusetts. The ACLU has recently published a “Know Your Rights”
pamphlet that explains your rights if you are stopped by the police, the FBI, the
INS or the Customs Service. It is available in English, Arabic, Spanish, Farsi,
Hindi, Urdu, and Punjab. You can obtain copies of the pamphlet by calling the
ACLU of Massachusetts at 617-482-3170.
Photos and Videos
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.
However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply… Know your rights. Look at what the ACLU has. Click for more.
Dealing with Law Enforcement
There are three basic types of encounters with the police: (1) Conversation, (2) Detention, and (3) Arrest.
When the police are trying to get information but don’t have enough evidence to detain or arrest you, they will try to get some information out of you. They may call this a “casual encounter” or a “friendly conversation.” If you talk to them, you may give them the information they need to arrest you or your friends. In most situations, it’s better and safer not to talk to police officers.
Police can detain you only if they have reasonable suspicion (see below) that you are involved in a crime. Detention means that, though you aren’t arrested, you can’t leave. Detention is supposed to last a short time and the police aren’t supposed to move you while you are detained. During detention, the police can pat you down and go into your bag to make sure you don’t have any weapons. They aren’t supposed to go into your pockets unless they feel a weapon.
If the police are asking questions, ask if you are being detained. If not, leave and say nothing else to them. If you are being detained, you may want to ask why. Then you should say the Magic Words: ”I am going to remain silent. I want a lawyer” and nothing else.
A detention can easily turn into arrest. If the police are detaining you and they get information that you are involved in a crime, they will arrest you, even if it has nothing to do with your detention. For example, if someone gets pulled over for speeding (detained) and the police sees drugs in the car, the police will arrest the person for possession of the drugs even though it has nothing to do with the person getting pulled over. Police have two reasons to detain you: (1) they are writing you a citation (a traffic ticket, for example), or (2) they want to arrest you but they don’t have enough information yet to do so.
Police can arrest you only if they have probable cause (see below) that you are involved in a crime. When you are arrested, the police can search you to the skin and go through you car and any belongings. By law, an officer strip searching you must be the same gender as you.
If the police come to your door with an arrest warrant, go outside and lock the door behind you. Police are allowed to search any room you go into, so don’t go back into the house for any reason. If they have an arrest warrant, hiding won’t help because they are allowed to force their way in if they know you are there. It’s usually better to just go with them without giving them an opportunity to search.
Other Things to Know
Definition of Assault
An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal or civil liability. Generally, the common law definition is the same in criminal and Tort Law. There is, however, an additional Criminal Law category of assault consisting of an attempted but unsuccessful Battery.
Statutory definitions of assault in the various jurisdictions throughout the United States are not substantially different from the common-law definition.
Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim.
The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.
Definition of Battery
Battery is concerned with the right to have one’s body left alone by others. Battery is both a tort and a crime. Its essential element, harmful or offensive contact, is the same in both areas of the law. The main distinction between the two categories lies in the penalty imposed. A defendant sued for a tort is civilly liable to the plaintiff for damages. The punishment for criminal battery is a fine, imprisonment, or both. Usually battery is prosecuted as a crime only in cases involving serious harm to the victim.
We cannot be overstated how important it is for each individual to be aware of their 5th Amendment rights to remain silent. For those who will be caught up in an arrest situation, it is very important that they exercise their 5th Amendment rights. Every defense attorney will advise you this.
Please watch this law school lecture for some concise details. The first half is a lecture by a defense attorney(approx. 27 mins); the second half is a lecture by a former police officer: