Recent events, such as the Black Lives Matter and the Parkland Shooting protests, seem to indicate that there has been a cultural reawakening throughout the United States to exert our First Amendment rights and participate in various forms of public discourse. On March 14, 2018, students and teachers across the country are expected to walk out of their classrooms in protest of gun violence and calling for gun law reforms. Standing up for your rights can be very difficult, even more so in the face of discipline. Therefore, understanding your rights, and their limitations, is crucial when actively engaging in public demonstrations.
What Is Protected Under the First Amendment?
The First Amendment of the United States protects the right of the citizens of this country to freedom of religion and freedom of expression, free from government interference. For the sake of this article we will be focusing on your right to freedom of expression.
What is included in Freedom of Expression?
Freedom of Speech
Freedom of Speech is the most basic form of freedom of expression. The First Amendment prohibits restrictions based on the content of speech, but it does not completely protect all types of speech. This is an important distinction that needs to be understood. Speech that breaches the peace, incites violence or destruction of property may be prohibited by the government (Can’t yell “Fire!” in a crowded movie theatre). However, generally, a person cannot be found liable, either criminally or civilly, for anything they say or write about a person or topic, if it is a factually truthful statement or based on an opinion the individually honestly believes to be true.
Freedom of Assembly
The First Amendment protects an individuals’ right to gather for peaceful and lawful purposes in public places. This right, however, is not absolute. For example, it does not extend to private property or to actions that could interfere with another person’s property rights (e.g. blocking the entrance to a business). Courts have held that the government, which includes the police, has a legitimate interest in maintaining civil order and protecting the property of its citizenry. The result is a balancing act between the government’s responsibility to maintain order and an individual’s Constitutional right to Free Speech and Assembly. The government can impose reasonable restrictions on the time, place, and manner of the assembly. Every little township or municipality can have their own rules in this regard so it is important to understand what your local rules and restrictions are on public assembly.
What are protected “public forums” for peaceful protests?
Streets, sidewalks, and public parks are traditionally all protected areas where an individuals have the right to gather and express themselves.
Are you allowed to protest on private property?
Generally, not without permission from the owner of the property. The owner of the private property has the right to limit what speech or assembly will take place on their property including not allowing it at all. If you disregard their rules, the owner is within their rights to order you off their property. If you do not comply they could seek the assistance of the police and you could be arrested and charged with trespassing.
However, if you have consent of the owner to protest on their property, the content of your speech cannot be restricted but the owner is always at liberty to revoke his consent.
When might I need a permit to protest?
- A march or parade that does not stay on the sidewalk;
- An event that requires blocking traffic or closing a street;
- A rally requiring the use of a sound amplifier; or
- A rally or protest at certain parks or public plazas;
- Anytime local laws require it.
What rights do counter-protesters have?
Counter-protesters have all the same rights as protesters. Counter-protestors have every right to present and voice their difference of opinion; however, they are not allowed to physically disrupt the event they are protesting or destroy the property of the protesters. Our criminal code does not change just because you are exercising your first amendment right to free speech. You will and can still be held civilly or criminally liable for acts of physical violence.
What should you do if you are stopped by the police?
Always stay calm and be polite to the police. Keep your hands where the officer can see them. Do not do anything that could be seen as obstructing or interfering with the officer, regardless of whether you believe the officer could be violating your rights. The street is not the place to challenge police misconduct. Explain to the officer that you are not disrupting anyone else’s activity and ask if you are free to leave.
When can a police officer give an order to disperse?
In Missouri, “Refusal to Disperse” law is speech-protective. The only time a police officer should give an order to disperse is during a riot or at the scene of an unlawful assembly. If you are at the scene where an order to disperse is given, the law requires you to obey the order or you will be subject to arrest. It is important to remember that even if you disagree with the merit of the police decision, failure to abide by the order can result in arrest, regardless of whether or not you are committing an act of violence.
What should you do if you are placed under arrest?
Never resist arrest. You have a right to ask why you are being arrested. Upon arrest, ask for a lawyer immediately and then remain silent. Never say anything or sign anything without a lawyer present. You have a right to a phone call. If you call your lawyer, the police are not allowed to listen to the conversation.
Can you record or photograph police officers in public?
Yes. Missouri is a single party consent state, which means as long as one party to the conversation (you) consents you may record it. This includes conversations with police officers. Keep in mind that you may not interfere with the duties of a police officer in any way while recording their actions.
Can Public Schools Discipline Students for Protesting (by engaging in a walkout)?
Yes. Students can be disciplined for missing class. However, a public school cannot discipline you more harshly because of the political nature behind your action. Therefore, if your school’s punishment for an unexcused absence is a one-day suspension, then it should be the same for leaving school, unexcused, for the day to participate in a protest. Before deciding whether to join a political walkout, you may want to investigate what policies your school has for unexcused absences.
Additionally, if you plan on participating in a walkout or other protest in lieu of attending class, be sure to know what assignments or exams you are missing as your school is not obligated to allow you to make up those assignments and exams. Missing them could result in damage to your grades.
Can Private Schools Discipline Students for Protesting?
Students have no rights under the First Amendment while in private schools. Students in those schools must adhere to the school’s policies, which may forbid them completely from taking part in any form of protest. The discipline for failing to adhere to the school’s policies may be significantly more than for an unexcused absence.
Can a teacher participate in the protest?
It depends on the school’s policies. Schools have a right to require teachers to teach during school hours and failing to abide by their employment contracts could result in their employment being terminated. Teachers have every right under the First Amendment to voice their opinions and participate in peaceful protests, but only on their own time, not while they are “on the clock.”
Every citizen has the right to assemble peacefully and voice their opinion. You cannot engage in speech that is dangerous to others or make factual statements that you know to be untrue without exposing yourself to potential civil or even criminal liability. Be aware of how your conduct could be affecting the rights of others. Find out if there are any special local regulations that limit when, where or how you can gather in protest. Know that if you choose to disobey orders from a police officer to disperse you will be subject to arrest even if it was a completely unlawful and unreasonable request on the part of the police officer. If you are arrested seek out the assistance of an attorney.
Gonzalo Fernandez is a personal injury attorney based in St. Louis. He regularly uses his legal expertise to offer insight on events impacting Missourians. Recent media appearances include the St. Louis Post-Dispatch, CBS St. Louis, Fox 2, and KPLR 11. To speak to Gonzalo, call (314) 433-9131 or email firstname.lastname@example.org.