*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
The right to protest is integral to our American identity, and in these tumultuous times in which misinformation is so prevalent, it is important to understand your rights as a protester and what actions are protected under the First Amendment.
The First Amendment protects your right to free speech and more broadly, free expression of opinion. Participation in protests, marches and other demonstrations, leafleting, chanting, symbolic expression (such as dance, art, etc) and more are included under its purview.
Though free speech is a right, there is a widespread and erroneous belief that you can say anything or perform any act of protest without penalty, under the protection of the Constitution. There are, however, limits. The most important thing to understand and consider before speaking/acting at a protest is whether what you say or do directly or indirectly contributes to the perpetration of a crime (or can be construed to do so). For example, although even very controversial opinions/criticism are allowed to be expressed, you can be charged for statements that encourage violence or destruction of property. And as it follows, violence, destruction of property and other criminal activity are never protected under the constitution, even if done as an act of protest or to express a political opinion. Even peaceful refusal to comply with any laws can and often is prosecuted. This is all important to know, but this writer would like to additionally note and argue that civil disobedience is just as American as lawful protest. Again, this does not mean you are legally protected and this writing should not be interpreted as an encouragement of it, but its history and potential for efficacy is indisputable. But as always, one should make informed decisions.
The location can also affect the legality of your protest; all traditional public forums (parks, sidewalks, streets) are generally fair game. For other public property, such as outside of state or federal buildings, your right to protest is still protected but take care to not block access to the buildings if you wish to protest without interference. Your right to protest is not protected on private property unless the owner of the property has permitted it; however with this permission law enforcement can not (legally) interfere with your free speech. In public spaces, you are allowed to record anything in plain view without interference, whereas on private property, the owner may set restrictions regarding this. You also do not need a permit to march in the streets or on sidewalks, though you may be legally required to move if asked by an officer to make way for people to pass or for safety reasons.
Things to note in regard to the behavior of law enforcement at protests;
Police can legally attend protests undercover. This also applies to them being able to attend planning meetings as well. They do not need to reveal that they are a member of law enforcement even under direct questioning. Generally speaking, police are allowed to lie to you except in regards to what your rights are. They also do not have to answer questions.
Uniformed police officers are required to display their badge numbers.
Police are not legally allowed to require a protest to disperse, it would need to be classified as progressing to a riot or otherwise “unlawful” assembly for this to legally be done. However, if you can be charged for ‘refusal to disperse’ even if you believe the order to be unlawful; this is a misdemeanor offense and can result in forms of probation, fines or up to 6 months in jail in California.
If police order protestors to disperse, they are required by law to allow for sufficient time to comply, as well as ensure there are sufficient and clear routes to leave. Police are required to provide details on how much time protestors have to disperse, the consequences of not doing so and instructions on the routes to take before they can be arrested or charged for failing to comply.
Police can not stop you from recording, nor do they have a right to view or confiscate recorded materials, or delete it under any circumstances. Do not believe you are obligated to show them if an officer asks to see. Notably, visual recordings are fully protected but audio recordings can sometimes be a legal gray area. Recording is your right and an officer can not detain you on suspension of criminal activity for recording alone.
You are obligated to comply with officers' orders; if they detain you, ask if you are free to leave and do so if you are. If not, ask what crimes you are suspected of and being detained for. If you are under arrest or are under suspicion, you should not answer questions or sign anything without a lawyer present.
You never have to consent to a search of your person or belongings, though you can be legally subjected to a frisk if suspected of holding a weapon or other criminal activity. Police may search belongings without probable cause if you enter a secure area, but you are also allowed to refuse and leave said area.
What to do if you believe your rights have been violated;
Write down all details you can remember at the first given opportunity, including the officer's badge number, patrol car number, and agency.
Photograph any injuries. You may feel compelled to record as events are going down as well.
Get the contact information of witnesses.
After, file a written complaint with the agency or a civilian complaint board.
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