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Do Restrictions on Protests Violate the Constitution?

WASHINGTON, DC - JUNE 03: Demonstrators rally at Capitol Hill in protest against police brutality and the death of George Floyd, on June 3, 2020 in Washington, DC. Protests continue to be held in cities throughout the country over the death of Floyd, a black man who was killed in police custody in Minneapolis on May 25. (Photo by Tasos Katopodis/Getty Images)
By George Khoury, Esq. on March 07, 2017 | Last updated on June 04, 2020

The First Amendment explicitly states that the government cannot pass any law infringing on the right to free speech, nor the right to assemble. As such, when state and local governments pass laws imposing restrictions on protests and protesters, these laws must be narrowly tailored so as to not violate the First Amendment's protections.

Typically, restrictions categorize protests based on how a protest gets started. Nevertheless, only certain types of conduct, typically involving the time, manner, and location of the protests, can be restricted or regulated. In response to the rising civil discontent and increase in protest activity nationwide, many states are trying to increase their ability to control protests, leaving many people wondering whether these new proposed laws are even constitutional.

Organized Protests

When organizers decide to put together a protest, there are usually many moving parts that need to be assembled. Among the most important include ensuring legal compliance so that people are not arrested for trespassing, or other common protest related charges. Protest laws vary from state to state and even from one local government to the next.

Most local governments require that protest organizers obtain some form of permit weeks in advance, particularly if the protest will disrupt traffic, not just on the roadways, but also on sidewalks. Many cities only require permits if the protest will be larger than 50 people. Additionally, many cities prohibit protests from occurring during the early morning hours, or late at night, or at specific events, places or parts of town, like funerals, an individual's home, public parks or memorials. These types of restrictions tend to fall under the permissible time, place and manner restrictions on the First Amendment for organized protests.

Frequently, local governments will require permit fees to be paid, or proof of event insurance coverage. However, these fees and requirements can be violations of the First Amendment if they cannot be waived for an organization that can show financial hardship or undue burden. Also, the fees cannot be unreasonable or disproportionate to the cost to the city, nor can the fees be increased due to costs caused by opponents.

Impromptu Protests

When it comes to unplanned protests, there are more constitutional protections. The right of the people to assemble in the wake of current events is a recognized right, and as such, local governments must provide exceptions to the permitting process, or other usual time, place, and manner restrictions, to accommodate these protests.

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