Civil Disobedience: Rooted in — but Not Protected by — the First Amendment

Civil disobedience is a public protest tactic used to highlight injustice in law or society. The practice is often rooted in First Amendment freedoms; those participating in civil disobedience may also exercise their right to free speech, assembly and petition to speak out for their cause.

But civil disobedience falls outside the legal protections provided by those rights. Even when done for moral reasons, intentional violations of the law are not protected by the First Amendment.

What does civil disobedience look like today?

Typically, civil disobedience is characterized by nonviolent action and a willingness to be arrested, prosecuted, or subject to disciplinary action in order to gain public attention and to mobilize public opinion in favor of change.

Throughout the nation’s history, Americans have used civil disobedience to demand change on issues as varied as voting rights, taxation, racial bias and segregation, war, economic policies, teacher salaries and labor issues.

A classic example of civil disobedience is Rosa Parks’ refusal in 1955 to obey a Montgomery, Alabama, ordinance requiring Black riders such as herself to give up seats to white riders on a crowded city bus.

More recent examples of civil disobedience include:

• In June 2025, U.S. Capitol Police arrested 34 peaceful protesters, including several people in wheelchairs, during a protest over proposed cuts to Medicaid spending. Most were arrested for blocking or impeding public access to a Senate office building; one person was charged with crossing a police line.
• Also in June 2025, National Guard and active-duty U.S. Marines were deployed to assist Los Angeles police in response to violent incidents during protests over federal immigration policies. Many protests involved civil disobedience, such as demonstrators blocking a major freeway: nonviolent, but nonetheless unlawful activity.

• In 2024, some gun owners in Illinois defied a state law requiring registration of “assault weapons” and large-capacity ammunition magazines. In some instances, the gun owners openly posted on social media about their refusal to comply, making their opposition to the law widely known.

• The nationwide outbreak of campus protests in 2024 over the Israel-Hamas war involved, at times, unauthorized “occupation” of campus grounds or buildings.
• Some Black Lives Matter protesters were arrested in 2020 after blocking streets in a number of cities while refusing police orders to disperse.
• High school students have participated in school walkouts, as pictured above in Marion, Indiana (photo credit: Jeff Morehead/The Chronicle-Tribune via AP), in recent years to protest federal inaction on gun control.
• In 2015, following the U.S. Supreme Court ruling legalizing gay marriage nationwide, a Kentucky county clerk refused to issue marriage licenses to same-sex couples. The clerk cited her religious beliefs and “shut down all marriage license operations in her office” to avoid issuing licenses to same-sex couples with a goal of promoting free exercise of religion — specifically, forcing employers to accommodate the religious beliefs of their employees.
• Some religious institutions did not comply with government mandates restricting group gatherings during the 2020-21 COVID-19 pandemic. In some cases, local governments sued the churches for their refusal to comply.

The history behind civil disobedience in the U.S.

The act of defying a law in the name of a cause follows a course first defined in the U.S. by Henry David Thoreau in his 1849 essay, originally titled “Resistance to Civil Government.” Referring to opposition to war with Mexico and to the then-legal institution of slavery, Thoreau wrote:

“All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist the government, when its tyranny or its inefficiency are great and unendurable.”

Dr. Martin Luther King Jr. later refined this concept in his 1963 “Letters from Birmingham Jail.” In response to those criticizing his methods of civil disobedience, King wrote that there is a “moral responsibility to disobey unjust laws,” even though that also meant accepting the penalty for doing so:

“Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with.”

However, civil disobedience also has its critics. In a 1964 essay titled “Civic Disobedience: A Theat to Our Society Under the Law” — written at a peak moment in the Civil Rights Movement — lawyer Morris Leibman noted: “No society whether free or tyrannical can give its citizens the ‘right’ to break the law. There can be no law to which obedience is optional, no command to which the state attaches an ‘if you please.’ … Specific disobedience breeds disrespect and promotes general disobedience. Our grievances must be settled in the courts and not in the streets. Muscle is no substitute for morality.”

Leibman also quoted Abraham Lincoln on breaking the law:

“Let every American, every lover of liberty … swear by the blood of the Revolution, never to violate in the least particular, the laws of the country. ... [L]et every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty.”

What do the courts say about civil disobedience?

Courts have made clear that intentionally refusing to obey a law has no First Amendment or other legal protections, even if the person who breaks the law may find it justifiable on a moral level.

Renowned civil rights-era federal Judge Robert Johnson wrote that “there is no immunity conferred by our Constitution and laws of the United States to those individuals who insist upon practicing civil disobedience” (Forman v. City of Montgomery, 1965). Even where “there are circumstances where it is clear that the moral duty to obey the law has ceased,” he said, “Civil disobedience necessarily involves violation of the law, and the law can make no provision for its violation except to hold the offender liable for punishment.”

Because civil disobedience often involves nonviolent illegal action that does not result in injury to people or property, punishment often involves fines, community service, probation or — at most — very short jail sentences, especially for a first offense.

But this is not always the case. Some penalties for individuals who engage in civil disobedience can be severe. For example, in 2024, a federal judge ruled that Kim Davis, the former Kentucky clerk who declined to issue marriage licenses to same-sex couples in 2015, had to pay $360,000 in damages, fees and legal expenses to one of the couples and their lawyers. Davis filed an appeal with the Supreme Court in May 2025.

The bottom line on civil disobedience and the First Amendment

Some legal scholars have called for “partial First Amendment protection” for civil disobedience, arguing that applying the strict rule that willfully disobeying a law automatically is deemed illegal activity is an “on-off switch” that “does a disservice to the principles of freedom of expression and assembly that the First Amendment is designed to protect.” These scholars have urged the courts to consider the nature of the violation, perhaps the downgrading of potential penalties from more serious felonies to misdemeanors based on specific circumstances such as acts of civil disobedience.

To date, though, courts have generally not allowed for this. But the First Amendment provides other avenues to protest, express dissent and speak up for a cause, highlighting its important role in effecting change without straying outside the parameters of the law.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at [email protected].