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Is There a Right to Peaceful Protest?

A person's right to air grievances without fear of retribution or censorship is fundamental to democracy in the United States.

Free expression of one's beliefs is protected by the First Amendment to the U.S. Constitution, which generally protects free speech, freedom of religion, freedom of the press, and freedom of assembly.

Protesting -- the time-honored practice of publicly speaking out against perceived injustices and urging action -- is a form of assembly and thus protected by the Constitution. But while there is a right to peaceful protest in the U.S., "peaceful" being the operative word, there are limits.

This article will help you better understand your constitutional right to peacefully protest; regulation of the time, place, and manner of peaceful protests; so-called free speech zones; and more.

The Right to Peaceful Protest: What the Constitution Says

Just one sentence comprises the First Amendment to the U.S. Constitution, granting people the right to various forms of free expression.

In addition to freedom of speech, religious expression, and the press, the amendment prohibits Congress from "prohibiting ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." After all, dissent in the American colonies was harshly punished by the British monarchy prior to independence, often through violent means.

But this right, as with other constitutional rights, is not absolute.

A case decided by the U.S. Supreme Court in 1969 (Shuttlesworth v. Birmingham), arising from the Civil Rights movement, both protected the right to protest and allowed certain limited restrictions. One of the Court's holdings is that any licensing requirement for "free expression in publicly owned places" is unconstitutional if it's not narrowly defined and objectively applied.

Specifically, that decision overturned an ordinance in Birmingham, Alabama prohibiting parades and assemblies (including protests) on city streets without a permit. The Court found that permit requests were denied specifically to suppress speech, not to control traffic as the law was intended.

But this decision also had the effect of allowing cities and other jurisdictions to deny permits as long as they have a compelling, objective reason to do so.

Peaceful Protests: Regulation of Time, Place, and Manner

While governments may not deny a person's constitutional right to peacefully protest, they may regulate the time, place, and manner in which the protest is conducted. This standard was further established by a 1989 Supreme Court decision (Ward v. Rock Against Racism), a case challenging the constitutionality of New York City's noise ordinance as applied to Rock Against Racism's concerts in Central Park.

In the Ward decision, the Court held that the noise-related restrictions are constitutional as long as any restriction of time, place, and/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); and
  3. Leaves open ample alternative channels for communication (expressive activity may still be conducted, even if its time, place, and/or manner is legally restricted in some way).

The Court also has held that requiring a permit for a peaceful protest in advance is constitutional, as are additional requirements for assemblies conducted near major public events. For instance, a city may require protest organizers to provide details about how the protest will be conducted.

One important exception to the permitting requirement, however, is when protestors gather in response to breaking news. For example, protests immediately following the 2014 police shooting of an unarmed, black teenager in Ferguson, Mo. did not require a permit.

Wartime Policies, Free Speech Zones, and Other Restrictions

Crackdowns on peaceful protests and other forms of dissent have shown up all throughout U.S. history -- shaping laws and testing the limits of the Constitution.

The Alien and Sedition Acts of 1798, for example, were passed in preparation for war with France in order 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, similarly restricting speech critical of the government or war.

Following the terrorist attacks of Sep. 11, 2001, the U.S. Secret Service expanded the use of "free speech zones" during the President's appearances.

These zones (at least 500 feet from the President) are often enclosed behind fences and cordoned off to such a degree that they substantially limit the protestors' ability to express their free speech. Violations are often met with trespassing, disorderly conduct, disturbing the peace, or similar charges.

Free speech zones also have been used at the national conventions of both the Democratic and Republican parties, as well as on college campuses in the 1960s and 1970s (and continue to be enforced on some campuses today). Free speech zones and other suspensions of protest rights after extraordinary events have survived constitutional challenges.

Related Resources:

Has Your Right to Peaceful Protest been Violated? Talk to an Attorney

Being able to express one's concerns and sometimes outrage without fear of being silenced is the cornerstone of any successful democracy. At the same time, cities and other jurisdictions have a duty to maintain public order and safety. If you believe your right to a peaceful protest has been violated, you have been arrested for protesting, or you have additional questions, you may want to speak with a civil rights attorney in your area. You may also wish to contact The National Lawyers Guild for pro-bono assistance.

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