Drayton's Gazette discusses social and political issues happening around the globe through the eyes of the African American, minority and disaffected communities.

Your Right to Protest from the National Lawyers Guild-LA Chapter

Your Rights to Demonstrate and Protest

A guide for demonstrators, marchers, speakers and others who seek to exercise their First

Amendment rights.

GENERAL GUIDELINES

Q. Can my free speech rights be restricted

because of what I want to say – even if it’s

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 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.

Q. Where can I engage in free speech activity?

A.

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. In addition, speech activity may

be permitted at other public locations such as the

plazas in front of government buildings which the

government has opened up to similar speech

activities.

Q. What about free speech activity on private

property?

A.

The general rule is that free speech activity

cannot take place on private property without the

consent of the property owner. However, in

California, the courts have recognized an exception

for large shopping centers and have permitted

leafleting and petitioning to take place in the public

areas of large shopping centers. The shopping center

owners, however, are entitled to impose regulations

that, for example, limit the number of activists on

the property and restrict their activities to designated

“free speech areas.” Most large shopping centers

have enacted detailed free speech regulations that

require obtaining a permit in advance. Recent court

decisions have found that the “shopping center

exception” does not apply to single, free-standing

stores, such as a Wal-Mart or Trader Joe’s.

Q. Do I need a permit before I engage in free

speech activity?

A.

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. However, the First Amendment 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.

SPECIFIC PROBLEMS

Q. If organizers have not obtained a permit,

where can a march take place?

A.

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

unreasonably obstruct or detain passers-by.

Q. May I distribute leaflets and other literature

on public sidewalks?

A.

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 types of

free speech activity are legal as long as entrances to

buildings are not blocked and passers-by are not

physically or unreasonably detained. No permits

should be required.

Q. Do I have a right to picket on public

sidewalks?

A.

Yes. This is an activity for which a permit is not

required. However, 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.

Q. Can the government impose a financial charge

on exercising free speech rights?

A.

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. Unfortunately, such charges

that cover actual administrative costs or the actual

costs of re-routing traffic have been permitted by

some courts so long as they are uniformly imposed

on all groups. However, if the costs are greater

because an event is controversial (or a hostile crowd

is expected) – by such things as requiring a large

insurance policy – the courts will not allow such

costs to be imposed. Also, regulations with financial

requirements should include a waiver for groups

that cannot afford the charge, so that even grassroots

organizations can exercise their free speech rights.

Therefore, a group without significant financial

resources should not be prevented from engaging in

a march simply because it cannot afford the charges

the City would like to impose.

Q. Can a speaker be silenced for provoking a

crowd?

A.

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 if he or she specifically

advocates violence or illegal actions and only if

those illegalities are imminently likely to occur.

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 views. Police are permitted to keep

two antagonistic groups separated but should allow

them to be within the general vicinity of one

another.

Q. Is heckling protected by the First

Amendment?

A.

Although the law is not settled, heckling should

be protected, unless hecklers are attempting to

physically disrupt an event, or unless they are

drowning out the other speakers.

Q. Does it matter if other speech activities have

taken place at the same location in the past?

A.

Yes. The government cannot discriminate against

activists because of the controversial content of their

message. Thus, if you can show that events similar

to yours have been permitted in the past (such as a

Veterans or Memorial Day parade), then the denial

of your permit application is an indication that the

government is involved in selective enforcement.

Q. What other types of free speech activity are

constitutionally protected?

A.

The First Amendment covers all forms of

communication including music, theater, film and

dance. The Constitution also protects actions that

symbolically express a viewpoint. Examples of such

symbolic forms of speech include wearing masks

and costumes or holding a candlelight vigil. However,

symbolic acts and civil disobedience that

involve illegal conduct may be outside the realm of

constitutional protections and can sometimes 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.

Q. What should I do if my rights are being

violated by a police officer?

A.

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 should not be convicted

if a court concludes that your First Amendment

rights have been violated.

For more information, contact the National Lawyers Guild

(323) 653-4510 • http://www.nlg-la.org

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