Whether or not you are a citizen, you have the following constitutional rights: the right to advocate for change (1st Amendment), the right to be free from unreasonable search and seizure (4th Amendment), the right to remain silent (5th Amendment). These are your rights under the law. The police may not know or care what your legal rights are and may intentionally violate them.
(Reprinted from the National Lawyers Guild.)
Can my free speech rights be restricted because of what I want to say,
even if it is controversial?
No. The First Amendment prohibits restrictions based on the content of speech. This does not mean that the Constitution completely protects all types of free speech activity in every circumstance. Police and government officials are allowed to place certain non-discriminatory and narrowly drawn “time, place and manner” restrictions on the exercise of First Amendment rights.
Can a speaker be silenced for provoking a crowd?
Generally, no. Even the most inflammatory speaker cannot be punished for merely arousing the audience. A speaker can be arrested and convicted for incitement only then if he or she specifically advocates violence or illegal actions and only if those illegalities are imminently likely to occur.
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 views. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.
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 superior and explain your position to her or him. 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 will have an opportunity at your trial to make the argument that your 1st Amendment rights have been violated.
TYPES OF PROTECTED SPEECH:
What types of free speech activities 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, such as wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct are outside the realm of constitutional protection and can lead to arrest and conviction. Therefore, while the act of sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.
May I distribute leaflets and other literature on public sidewalks?
Yes. Pedestrians on public sidewalks may be approached with leaflets, newspapers, petitions and solicitations for donations. Tables may also be set up on sidewalks for these purposes if sufficient room is left for pedestrians to pass. These activities are legal as long as entrances to buildings are not blocked and passersby are not physically or unreasonably detained. No permits should be required.
Is heckling protected by the First Amendment?
Generally, yes. Although the law is not settled, heckling should be protected unless hecklers are attempting to physically disrupt an event or they are drowning out the other speakers.
Where can I engage in free speech activity?
Generally, all types of expression are constitutionally protected in traditional “public forums” such as public sidewalks and parks. Public streets can be used for marches subject to reasonable permit conditions. Speech activity may be permitted at other pubic locations, such as the plazas in front of government buildings, which the government has previously opened up to similar speech activities. On private property, free speech activities depend on the consent of the property owner.
Do I have a right to picket on public sidewalks?
Yes. A permit is not required. The picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked. Contrary to the belief of some law enforcement officials, picketers are not required to keep moving, but may remain in one place as long as they leave room on the sidewalk for others to pass.
Do I need a permit before I engage in free speech activity?
Not usually. However, certain types of events require permits. Generally, these events include: (1) a march or parade that does not stay on the sidewalk and other events that require blocking traffic or street closures; (2) a large rally requiring the use of sound amplifying devices; or (3) a rally at certain designated parks or plazas, such as federal property managed by the General Services Administration. Many permit procedures require that the application be filed several weeks in advance of the event. The First Amendment, however, prohibits such advance notice requirements 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 views. If you can show that events similar to yours have been permitted in the past (same route/location, similar use of sound systems – e.g. Memorial Day parade) then the denial of your permit application is an indication that the government is involved in selective enforcement.
If organizers have not obtained a permit, where can a march take place?
If marchers stay on the sidewalk 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 not reasonably obstruct or detain passersby.
Can the government impose a financial charge on exercising free speech rights?
Sometimes. Increasingly, local governments are imposing financial costs as a condition of exercising free speech rights. These include application fees, security deposits for clean-up, or charges to cover overtime police costs. Courts have permitted charges that cover actual administrative costs and actual costs of re-routing traffic, so long as they are uniformly imposed on all groups. Courts will not, however, allow extra costs (such as high insurance costs) to be imposed on a group because their event is controversial or a hostile crowd is expected. Also, these regulations often include a waiver for groups without significant financial resources.