Your Constitutional
Rights When
Protesting
The Exercise of First Amendment Rights
The First Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the press; or the
right of the people peaceably to assemble,
and to petition the Government for a
redress of grievances.
Main Principles of Legal Protesting
1. Typically, it is the conduct of the protest
that creates legal issues, not the content.
2. The freedom to protest is possessed by
everyone.
3. The time, place, and manner of the
protest matters.
Can I Say That?
A vast majority of the
time the government
can not limit the
content of a protest,
unless it falls under
one of these
exceptions:
 Defamation
 Obscenity
 True Threats
 Fighting Words
 Incitement
What is Defamation?
 The act of making untrue statements about another which
damages his/her reputation.
 Libel: Written
 Slander: Spoken
 Elements of defamation:
1. Statement is false
2. Statement is made available to a 3rd party
3. If statement is of public concern the communicator must be
negligent (if the victim is a public figure the communication must
be made with actual malice.)
4. The person whom the defamatory statement is about must be
damaged.
Malice: the intention or desire to do evil; ill will.
What is Obscenity?
 Miller Test:
1. Whether the average person applying a “contemporary
community standard” would find that the work “taken as
a whole” appeals to “prurient interest”
2. Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the
applicable state law
3. Whether the work, “taken as a whole” lacks serious
literary, artistic, political, or scientific value.
Miller v. California (1973)
Prurient: having or encouraging an excessive interest in sexual matters
What are True Threats?
 A “true threat” receives no 1st Amendment protection per
Watts v. US (1969)
 True Threat: a threat that a reasonable person would
interpret as a real and serious communication of an intent to
inflict harm.
 Speaker does not need to actually intend to carry out the
threat
 Either a “knowledge test” (defendant knows the statement
would put the target in fear or “reckless test” (defendant
knew there was a serious risk that the statement would put
the target in fear) - - depends on what federal circuit you are
in.
What are Fighting Words?
 Chaplinsky v. New Hampshire
(1942)
 Speech that is lewd, obscene,
profane, libelous and insulting that
by their very utterance inflict injury
or tend to incite an immediate
breach of the peace.
 These utterances have no
essential part of any exposition of
ideas, an are of such slight social
that any benefit is clearly
outweighed by the social in order
and morality.
 Chaplinsky Balance Test:
exposition of ideas v. social value
What is Incitement?
 Brandenburg v. Ohio (1969)
 The government cannot
punish inflammatory speech
unless that speech is
directed to incite, and is
likely to incite, imminent
lawless action.
 A speaker yells to a large
agitated group “lets burn this
city down!”
 Hate speech must lead to
imminent hate violence.
Where Can I Protest: The Public
Forum Doctrine
1. Traditional Public Forums are open for protest:
Sidewalks, parks, and areas traditional open to political speech and debate.
Ex. Speaker Circle at Mizzou or the front plaza of the Supreme Court
2. Limited Public Forums can be limited for protest:
Government by limit access to these areas, but not based on viewpoint
discrimination. Ex.: Limiting speech at school board meeting to school related
issues.
3. Nonpublic Forums are closed for protest:
Government can restrict speech if reasonable and not discriminatory based on
speakers’ viewpoint. Ex.: Courtrooms, Airport terminals and public school’s
internal mail system.
Note: Speech on private property can be regulated by the owner of the
property.
Do I Need Permission to Protest In a
Public Forum?
 If a protest is on the sidewalk, obeying all traffic and
pedestrian laws (not blocking by-standers) then a permit is
NOT needed.
 If a larger protest is going to be taking place in a public form,
then the government can require a permit.
 A permit can not be denied based on the purpose or viewpoint
of the protest and fees may not be unreasonable.
 Any restrictions on a protest cannot be based on a protester’s
controversial or unpopular viewpoint.
 Lack of a permit cannot restrict a spontaneous protest in
response to unforeseeable or recent events.
Can I Protest Any Time, Place or in Any
Manner I Want?
 NO, the government can place restrictions on the time,
place and manner of protests if it meets the following test of
Constitutional validity:
1. Is the government interest served by the regulation unrelated to
the suppression of a particular message?
2. Is the regulation narrowly tailored to serve the government
interest?
3. Does the regulation leave open ample alternative means for
communicating messages?
 Time, Place & Manner (TPM) restriction are designed to
regulate protesting, but TPM restriction are not designed to
suppress a protest.
What If I Am Stopped By The Police
When Protesting?
 Keep hands were police can see them and don’t run
 Some states require you to verbally identify yourself, but you
are not required to provide any additional identification.
 If you are arrested, the police may “pat you down” for their
protection but not search you further without probable
cause. You have the right to not speak.
 You can take photography and video during a pubic forum
protest so long as the activity does not interfere with police
activities, and the images can not be searched, or
confiscated by the police without a warrant.