Know Your Rights While Protesting

The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy. But it is also unfortunately true that governments and police can violate this right – through the use of mass arrests, illegal use of force, criminalization of protest and other means intended to thwart free public expression.

Standing up for your right to protest can be challenging, especially when demonstrations are met with violence. But knowing your rights is the most powerful weapon you have against police abuse. Read on to learn what you need to know before heading out to exercise your constitutionally protected right to protest.

Q. Can my free speech be restricted because of what I say — even if it is controversial?

A. No. The First Amendment prohibits restrictions based on the content of speech. However, this does not mean that the Constitution completely protects all types of speech in every circumstance. Police and government officials are allowed to place certain narrowly drawn "time, place and manner" restrictions on the exercise of First Amendment rights — for example, permit requirements for large groups using public parks or limits on the loudness of sound amplifiers. Any such restrictions must apply to all speech regardless of its point of view.

Q. Where can I engage in free speech activity?

A. Generally, all types of expression are constitutionally protected in traditional "public forums" such as streets, sidewalks and parks. In addition, you may have a right to speak in other public locations that the government has opened up for unrestricted public speech, such as plazas in front of government buildings.

Q. Do I need a permit before I engage in free speech activity?

A. Not usually. However, certain types of events require permits. For example:

  • A march or parade that does not stay on the sidewalk and other events that require blocking traffic or street closure;
  • A large rally requiring the use of sound amplifying devices; or
  • A rally at certain designated parks or plazas.

A permit cannot be denied because the event is controversial or will express unpopular views.

Q. If organizers have not obtained a permit, where can a march take place?

A. 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.

Q. May I distribute leaflets and other literature on public sidewalks without a permit?

A. Yes. You may approach pedestrians on public sidewalks with leaflets, newspapers, petitions and solicitations for donations without a permit. 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 tables or other physical structures.

Q. Do I have the right to photograph or videotape during protests?

A. Yes. When you are lawfully present in any public space, you have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities and the police. When you are on private property, the property owner may set rules about the taking of photographs or video. Police officers may not confiscate or demand to view your digital photographs or video without a warrant, nor may they delete your photographs or video under any circumstances. However, they may legitimately order citizens to cease activities that are truly interfering with legitimate law enforcement operations.

Q. Do counter-demonstrators have free speech rights?

A. 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.

Q. What do I do if I get stopped by the police?

A. Stay calm, be polite and don't run. Don't argue, resist or obstruct the police, even if you are innocent or you believe that the police are violating your rights. Make sure to keep your hands where police can see them. Point out that you are not disrupting anyone else's activity and that the First Amendment protects your actions. Ask if you are free to leave. If the officer says yes, calmly and silently walk away.

Read more about what to do if you are stopped by the police, with special information for non-citizens

Q. What do I do if my rights have been violated?

A. Remember: the street is not the place to challenge police misconduct. Don't physically resist officers or threaten to file a complaint. As soon as you can, write down everything you remember, including officers' badge and patrol car numbers, which agency the officers were from and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first). Once you have this information, you can file a written complaint with the agency's internal affairs division or civilian complaint board; in many cases, you can file a complaint anonymously if you wish. You can also seek the assistance of the ACLU of Indiana.

 

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