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Know Your Rights: Demonstrations and Protests General guidelines

Source: ACLU & ACLU Pennsylvania

Can my free speech be restricted because of what I say—even if it is controversial?

No. The First Amendment prohibits restrictions based on the content of speech. However, this does not mean that the Constitution completely protects all types of free speech activity in every circumstance. Police and government officials are allowed to place certain nondiscriminatory and narrowly drawn “time, place and manner” restrictions on the exercise of First Amendment rights. Any such restrictions must apply to all speech regardless of its point of view.

What should I do if my rights are being violated by a police officer?

It rarely does any good to argue with a street patrol officer. Ask to talk to a supervisor and explain your position to him or her. Point out that you are not disrupting anyone else’s activity and that the First Amendment protects your actions. If you do not obey an officer, you might be arrested and taken from the scene. Always ask: “Am I free to go?” If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why. You should not be convicted if a court concludes that your First Amendment rights have been violated.

Where can I engage in free speech activity?

Generally, all types of expression are constitutionally protected in traditional “public forums” such as streets, sidewalks and parks. In addition, your speech activity may be permitted to take place at other public locations that the government has opened up to similar speech activities, such as the plazas in front of government buildings.

What about free speech activity on private property?

The general rule is that the owners of private property may set rules limiting your free speech. If you disobey the property owner’s rules, they can order you off their property (and have you arrested for trespassing if you do not comply).

Do I need a permit before I engage in free speech activity?

Not usually. However, certain types of events require permits. Generally, these events are:

• A march or parade that does not stay on the sidewalk, and other events that require blocking traffic or street closure

• A large rally requiring the use of sound amplifying devices; or

• A rally at certain designated parks or plazas

Many permit procedures require that the application be filed several weeks in advance of the event. However, the First Amendment prohibits such an advance notice requirement from being used to prevent rallies or demonstrations that are rapid responses to unforeseeable and recent events. Also, many permit ordinances give a lot of discretion to the police or city officials to impose conditions on the event, such as the route of a march or the sound levels of amplification equipment. Such restrictions may violate the First Amendment if they are unnecessary for traffic control or public safety, or if they interfere significantly with effective communication with the intended audience. A permit cannot be denied because the event is controversial or will express unpopular views.

What should I do if I am ordered to disperse?

A police officer can order a “disorderly” group to leave an area, even in a place where they have a right or a permit to be, if that officer reasonably expects the group’s presence will result in substantial harm or serious inconvenience, annoyance, or alarm. If you hear an officer give an order to disperse, you will be arrested if you do not obey.

What is civil disobedience?

Civil disobedience is peaceful but unlawful activity as a form of protest—for instance, “occupying” private property. It can be (and often is) prosecuted. You should expect to be arrested.

Interactions with Law Enforcement

Can I record or photograph police in public?

Yes. Pennsylvania law forbids audio recordings of what people say without their permission if they have a reasonable expectation of privacy, but that does not apply to police who are performing official duties in public.

Can undercover police legally monitor protest activities?

Generally, yes, police may monitor protesters’ internet postings, attend public protests, record or photograph demonstrators, or attend planning meetings to learn about planned protest activities.

Do I have to show ID when police demand it?

It depends. If you live in one of the 24 states that has a “stop and identify” statute like Arizona, you will be required to show identification when an officer asks you for it (If they have reasonable suspicion that you’re involved in criminal activity.)

Can police search demonstrators?

You do not have to consent to a search of yourself or your belongings, but police may “pat down” your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

Can police search bags and containers without probable cause?

Yes, if you are entering what has been marked a secure area. But you can choose to refuse the search and not enter the secure area. Otherwise, police can only search bags if they have probable cause that it contains contraband, weapons, or evidence of illegal activity.

If You Are Stopped or Questioned by Police

• Determine if you are being detained by asking the officer if you are free to leave.

• Stay calm and in control of your words, body language, and emotions.

• If police ask to frisk and “pat down” your outer clothing, tell them you do not consent, but do not physically resist. Also, say clearly that you do not consent to further search.

• The First Amendment allows you to criticize or swear at the police, but insulting or arguing with the police may get you arrested.

• If you do talk to the police, do not lie. That is a crime. Remember, anything you say or do can be used against you. You may tell police officers that you wish to remain silent.

• Keep your hands where police can see them and don’t make any sudden moves.

• Remember officers’ badge or patrol car numbers.

• Write down everything you remember ASAP.

• Try to find witnesses and get their names and phone numbers.

• If you are injured, take photos of the injuries ASAP, but don’t delay seeking medical attention.

Even if you think the police are doing something wrong or illegal, do not argue with them or physically struggle. You won’t win, and the charges against you are likely to be more severe. Police misconduct should be addressed only after the fact.

If You Are Questioned About Your Immigration Status

You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports and for individuals on certain nonimmigrant visas, including tourists and business travelers.)

If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent. Do not lie about your citizenship status or provide fake documents.

If You Are Arrested or Taken to a Police Station

• Ask for a lawyer immediately if you are arrested. If you can’t afford a lawyer, you are entitled to a free, court-appointed lawyer before you are questioned.

• You have the right to remain silent. You may simply say, “I am going to remain silent and would like a lawyer.”

• Do not discuss your case over the phone; calls from police stations and jails are monitored or recorded.

• Do not discuss your case with others being held; they may be undercover police.

• Do not make any decisions in your case until you have spoken with a lawyer.

• A judge will decide if the charges against you are supported by probable cause, and if so, the judge may set bail. Bail may be denied if you don’t have ID.


Things to Keep in Mind

• Carry ID. Never carry false ID.

• You should make arrangements in advance with friends about what to do if one of you is arrested.

• Memorize important phone numbers. If you are arrested your personal possessions, including your cell phone, will be taken by the police.

• Avoid carrying drugs or weapons at a protest–even a pocketknife. If you are arrested, you could face additional charges for their possession.

• If you have an outstanding warrant or problems with your immigration status, you may encounter problems if you are arrested during the protest.

• If you take medication for a chronic condition, you should consider how long you can go without your medication if you are arrested. If you own a medical alert tag, wear it.

Specific problems:

If organizers have not obtained a permit, where can a march take place?

If marchers stay on the sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not maliciously obstruct or detain passers-by.

May I distribute leaflets and other literature on public sidewalks?

Yes. You may approach pedestrians on public sidewalks with leaflets, newspapers, petitions and solicitations for donations without a permit. Tables may also be set up on sidewalks for these purposes if sufficient room is left for pedestrians to pass. These types of free speech activities are legal as long as entrances to buildings are not blocked and passers-by are not physically and maliciously detained. However, a permit may be required to set up a table.

Do I have a right to picket on public sidewalks?

Yes, and this is also an activity for which a permit is not required. However, picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.

Do counter-demonstrators have free speech rights?

Yes. Although counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their displeasure. Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another.

Does it matter if other speech activities have taken place at the same location?

Yes. The government cannot discriminate against activities because of the controversial content of the message. Thus, if you can show that similar events to yours have been permitted in the past (such as a Veterans or Memorial Day parade), then that is an indication that the government is involved in selective enforcement if they are not granting you a permit.

What other types of free speech activity are constitutionally protected?

The First Amendment covers all forms of communication including music, theater, film and dance. The Constitution also protects actions that symbolically express a viewpoint. Examples of these symbolic forms of speech include wearing masks and costumes or holding a candlelight vigil. However, symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction. Therefore, while sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.

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