The First Amendment and our rights to speak, assemble and seek change

This column expresses the views of Gene Policinski, senior fellow for the First Amendment, Freedom Forum.

This spring-now-summer of protest shows no signs of fading away, as demonstrators make their voices heard on issues as disparate as health regulations, gun violence, Confederate statues and institutionalized racism.

Through it all, the First Amendment both fuels those voices and protects those rights — at times in collaboration with other amendments in the Bill of Rights.

Still, few of us are steeped in constitutional law and statutory regulations. Primers can provide any citizen with the basics on rights, responsibilities and potential entanglements with a patchwork quilt of federal, state and local laws.

Here’s a First Amendment-friendly guide with links to those primers, classes and advisories about protest — how the rights of free speech, assembly and petition work when you step outside — or go online — to be heard.

From the Freedom Forum:

  • Freedom of Assembly protects the right to peacefully gather with others, without regard to views and opinions when we take the streets in protest or in support of a causes.
  • Everything you need to know whether you’re a student, parent, teacher, school administrator or lawyer about classroom walk-outs and school protests.
  • Social media platforms are private companies and since the First Amendment only applies to government, they can accept or reject what people post. But given their growing role in public discourse, what are their censorship policies? How do they compare to each other and to the First Amendment’s protections?
  • I’m just speaking my mind, at work or in a public place — how protected is what I say?
  • Pushing the limits of protected speech: When is “disruptive” too disruptive?
  • How it was done: (Video) Shirlene Mercer remembering the modern civil rights-era protests around lunch counter sit-ins in Greensboro, N.C.

From other sources:

  • The experts at New York University’s online First Amendment Watch have produced a detailed guide for citizens when recording police activity. Learn about federal and state laws, how your rights apply in different situations and the legal roots for this still-new tool in holding police accountable.
  • The American Civil Liberties Union (ACLU) has a quick, to-the-point general guide to “know your rights at a protest.”
  • The online legal services site FindLaw has a guide to legal issues ranging from basic rights to a section titled — somewhat ominously — “wartime policies.” The same site also provides a guide to each state’s unique laws about protesting in public.

To all of that information, let’s add a few additional items:

  • When protesting, there is no immunity under the First Amendment that allows you to disregard, without potential arrest and penalty, a direct order — even one you believe is illegal — from a police officer.
  • The First Amendment rights of petition and assembly do not give you permission to cross or occupy private property; that’s still called trespassing. And as to occupying public property: Since the “occupy” movement a few years ago, many jurisdictions updated their policies regarding public squares, parks and such, with many outlawing overnight stays or blocking the space so that other, non-involved persons are unable to pass through it.
  • Blocking traffic on a public street, whether an individual effort or a mass protest, likely is illegal. Again, there is no First Amendment shield against arrest, though police action may well depend on balancing the taking of protesters into custody versus clearing the thoroughfare.
  • The rights of assembly and petition on National Park Service property have certain limitations, with permits required if a group of 25 or more, or – pay attention to this — the protest is likely to attract a combined audience of participants and those watching of more than 25. A court decision some years ago cleared the way for individuals to protest with no permit conditions, as long as the person was not blocking others from using the park.

Granted, a recitation of the rules, regulations and legal circumstances around exercising your free speech when assembling peaceably to petition for change may lack the passion of the real thing.

But it’s those freedoms that give legal protection for the passions that have changed the nation’s laws, policies and even attitudes, about women’s rights, racial injustice, juvenile protection laws, labor regulations and rights and much more.

And that’s a lot from a little: the simple but majestic 45 words of the First Amendment.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [email protected], or follow him on Twitter at @genefac.

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