Is There a Right to Peaceful Protest?

Protesting is the practice of publicly speaking out against perceived injustices and urging action. It is a form of assembly protected by the Constitution and by international human rights law. While there is a right to peaceful protest in the U.S., there are limits. These rights also only apply to public space, not private property.

This article will help you better understand your constitutional right to protest peacefully. It also addresses the regulation of the time, place, and manner for peaceful protests.

First Amendment Protections

The ability to air grievances without fear of retribution or censorship is fundamental to democracy in the United States.

The First Amendment to the U.S. Constitution protects the free expression of beliefs. The First Amendment generally protects:

• Freedom of speech
• Freedom of religion
• Freedom of the press
• Freedom of assembly

The Right to Peaceful Protest: What the Constitution Says

The First Amendment grants the right to various forms of freedom of expression. That includes the right of peaceful assembly and freedom of association.

The First Amendment protects freedom of speech, of religious expression, and of the press.

In addition, it stops Congress from "prohibiting ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

First Amendment rights, as with other constitutional rights, are not absolute and subject to limitations.

Supreme Court Cases and Changes

A case the U.S. Supreme Court decided in 1969, Shuttlesworth v. Birmingham, arose from the civil rights movement. The case both protected the right to protest and allowed limited restrictions.

One of the court's holdings is that any licensing requirement for "free expression in publicly owned places" is unconstitutional if not narrowly defined and objectively applied.

The court's decision overturned an ordinance in Birmingham, Alabama. The city had prohibited parades and assemblies on city streets without a permit. The ordinance included protests. The court found that permit requests were denied to suppress speech.

The Supreme Court's decision also allowed cities and other jurisdictions to deny permits. Still, there must be a showing of a compelling, objective reason.

Peaceful Protests: Regulation of Time, Place, and Manner

Governments can't deny a person's constitutional right to protest peacefully. However, the government may regulate the time, place, and manner in which a protest happens.

A 1989 Supreme Court decision, Ward v. Rock Against Racism, further established this standard. The case challenged the constitutionality of New York City's noise ordinance. The issue was Rock Against Racism's concerts in Central Park.

The court held that noise-related restrictions are constitutional as long as any restriction of time, place, or manner:

1. Is content-neutral, meaning the content of the speech or expression may not factor into the permitting decision
2. Is narrowly tailored to serve a significant governmental interest, such as public safety and order
3. Leaves open ample alternative channels for communication

The court has also held that requiring getting a permit in advance for a peaceful protest is constitutional. This includes protests that may block traffic or roadways. For example, protesters risk arrest if they block a roadway they have not obtained a permit for.

Extra requirements for assemblies conducted near major public events are also permissible. In these situations, a city may require protest organizers to provide details about how they'll hold a protest or sit-in.

An exception to the permitting requirement is when protesters gather in response to breaking news. For example, protests following the 2014 police shooting of an unarmed black teenager in Ferguson, Missouri, did not require a permit.

Wartime Policies and Protesting

Crackdowns on peaceful protests and other forms of dissent have shown up throughout U.S. history. These shape laws and test the Constitution's limits.

The Alien and Sedition Acts of 1798, for example, were passed in preparation for war with France. The acts were intended to silence dissent.

The series of legislation restricted speech critical of the government, among other provisions. The Espionage Act of 1917 and the Sedition Act of 1918 followed. They similarly restricted speech critical of the government or war.

Free Speech Zones and Other Restrictions

Following the terrorist attacks of Sept. 11, 2001, the Secret Service expanded the use of "free speech zones" during presidential appearances.

These zones are at least 500 feet from the president. They are often enclosed behind fences and cordoned off. Sometimes the zones substantially limit protesters' abilities to express their free speech.

Violations can result in trespassing, disorderly conduct, disturbing the peace, and other similar charges.

Free speech zones are also put to use at the national conventions of both the Democratic and Republican parties and at rallies. They were used on college campuses in the 1960s and 1970s, and some campuses continue to enforce them today. Free speech zones and other suspensions of protest rights after extraordinary events have survived constitutional challenges.

Talk to an Attorney About Peaceful Protest Rights

It's a cornerstone of any thriving democracy to be able to express concerns without fear of being silenced. That includes the right to express minority viewpoints. Still, cities, other jurisdictions, and law enforcement agencies must maintain public order and safety. Civil disobedience requires limits to ensure a civil society.

If you've been arrested for picketing or another form of peaceful protest, an attorney can help.

Speak with a civil rights attorney in your area. Know your rights. You can also contact the National Lawyers Guild for pro bono help. And the American Civil Liberties Union (ACLU) offers legal assistance through its affiliate organizations.

Related Resources

• Rights of Protesters (American Civil Liberties Union)
• Filing Civil Rights Claims (FindLaw)
• Student Speech (FindLaw)
• First Amendment to the U.S. Constitution (FindLaw)
• State Protesting Laws (FindLaw)
• Rioting and Inciting to Riot (FindLaw)