Nonviolent civil disobedience has a long history in America, particularly on college campuses. Recent protests across campuses regarding the war in Gaza have re-focused attention on how to protest effectively and whether it can harm a student's future opportunities. What are the consequences of civil disobedience for college students?
This blog does not advocate for students to attend or organize a protest event or avoid doing so. Rather, it's meant to inform students of their rights and the legal risks involved in participating in a peaceful protest.
Legal Foundations of Protesting and Free Speech
The First Amendment clearly states that we have a right to protest peacefully. However, it's important to note that this right, like all Constitutional rights, is not absolute.
There are two types of restrictions courts identify when discussing First Amendment free speech rights:
- Content-based restrictions
- Time, manner, and place restrictions
Content-based restrictions are generally unconstitutional. For example, police cannot arrest a student for protesting against antisemitism but ignore students protesting against Islamophobia. That's treating people differently based on their viewpoint, which is very difficult to justify in court.
However, time, manner, and place restrictions are much easier to enforce. For example, a city or university can direct protesters to a designated area to avoid traffic jams or violent clashes. Most arrests for protesting arise from time, manner, and place restrictions.
Civil Disobedience and Legal Boundaries
The line between a peaceful, lawful protest and one that can result in an arrest can sometimes be thin. Other times, it is deliberately crossed.
In his "Letter from Birmingham Jail," Rev. Martin Luther King Jr. wrote, "there are just laws, and there are unjust laws." He argued that there can be a moral obligation to violate unjust laws.
However, remember that King tried to obtain permits to demonstrate when possible. And many of the laws he and other civil rights activists violated were specifically designed to maintain white supremacy. But if a city would not let them demonstrate at all, such as in Birmingham, he did so anyway.
Whether just or unjust to your mind, disobeying laws can lead to an arrest and whatever punishment the law sets forth. King spent time in jail. He ultimately gained the nation's respect and admiration for his advancement of civil rights, but it was a long journey.
All this is to say: Violating the law can lead to legal consequences regardless of your moral justification.
Consequences of Getting Arrested for Nonviolent Protesting in College
The most common charges associated with protesting are trespassing, disorderly conduct, and other misdemeanors. For example, in most states, passively resisting arrest (such as by going limp) is a misdemeanor. However, threatening violence or assaulting a police officer is a felony charge. Vandalism, theft, and violence can also lead to criminal charges.
Protest events usually have a significant police presence to control crowds and prevent illegal behavior from protesters and counter-protesters. Their job is to promote public safety and enforce existing laws. Protesters who engage in illegal behavior risk getting arrested and charged.
The local district attorney's office (DA) is responsible for pressing charges if you are arrested. It is impossible to predict how any one district attorney's office will treat students arrested for civil disobedience. It can depend on the DA, the potential offense, and other factors. If you are charged, however, you can expect to face a trial weeks or months after your arrest.
Currently, students are occupying buildings or public areas in many universities to support Palestine. Universities, however, have the ability to decide when buildings are open to the public. If a university does not grant student protesters the right to occupy a building, it is trespassing, and students can be arrested for it.
Universities may negotiate with student leaders to resolve the situation. In such cases, police and prosecutors may forego any arrest or criminal charge for trespassing. However, when a university requests police assistance to disperse trespassing protesters, students could be arrested and spend time in jail.
In New York, simple trespass is a violation, not a crime. The typical punishment is a fine and community service. However, trespass in the third degree, which involves trespassing into an enclosed building, is a Class B misdemeanor.
Punishment and Disciplinary Actions for Protesting
In addition to possible criminal charges, students who engage in civil disobedience can face academic punishment, including expulsion.
A public university is obligated to respect students' First Amendment rights. However, a student who violates their school's policy regarding protesting or disobeying a dispersal order can face expulsion. This is a time, manner, and place restriction, not a content-based restriction.
Columbia University has pledged to expel students who barricaded themselves in Hamilton Hall. Even if Columbia was a public school, it would not be a First Amendment violation because the students are violating university policy, and the university is not prohibiting pro-Palestinian comments, just the manner in which the protesters are demonstrating.
Future Consequences
Students who are arrested may also face future consequences in their careers. State laws vary in how and when employers can ask about past criminal convictions. In New York, most employers are not allowed to ask about criminal convictions until they make a job offer.
However, once the offer is made, employers are allowed to run a background check and ask about all convictions, including misdemeanors. A background check will also reveal convictions for any misdemeanors. This does not necessarily prohibit you from still getting the job, but an employer can use it as a factor to withdraw the job offer under certain conditions.
Navigating Protests With Awareness
This blog does not condemn protests or advocate for it. However, it is important that all protesters understand their rights and obligations.
If you are organizing a nonviolent protest and wish to obey all laws, contact the university administration to ensure they are aware of your plans. Many university administrations will support peaceful demonstrations and help ensure the event goes smoothly.
Related Resources
- Is There a Right to Peaceful Protest? (FindLaw's Learn About the Law)
- Protest Laws by State (FindLaw's Learn About the Law)
- Student Speech (FindLaw's Learn About the Law)
