The Constitutional Right To Protest

August 7, 2020 – Published by Robinson Law Firm

Protesting is in the genetic makeup of our Country. Protests against abuses by the English Crown resulted in the enactment of the Magna Carta, the genesis of our modern-day Constitutional Rights. The Stamp Act Protests (1765), Boston Tea Party (1773), Abolitionist Movement (1830-1865), Women’s Suffrage Parade (1913), March on Washington (1963), Civil Rights Movement (1958-1964), and Anti-War Movement (1967-1972) are examples of historical protests effectuating change in our Country. Currently, this right is being exercised in response to the death of George Floyd who was killed by police officers while effectuating his arrest on May 25th. As a result, many have questioned the proper exercise of their right to protest.


The First Amendment protects “freedom of speech”. The Fourteenth Amendment ensures this right shall not be abridged by any state. Article I, § 14 of the North Carolina Constitution also protects this right. The First Amendment not only protects speech, but also “affords protection to symbolic or expressive conduct…”, including “as a general matter peaceful picketing and leafletting.” One of the bedrock principles underlying the First Amendment “is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  Such diverse or divergent ideas are why the protections of the First Amendment are so critical. However, First Amendment protections are not absolute.


Freedom of speech is not violated simply because the course of conduct made illegal “was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”  Speech that encourages imminent violence or illegal activity is not protected. Government may regulate certain categories of expression consistent with the Constitution.  The First Amendment does not guarantee the proponent a captive audience; only the opportunity to “reach the minds of willing listeners.” A proponent cannot communicate their views at any time or place, or in any manner desired. The United States Supreme Court as well as our North Carolina Supreme Court have held that the protections afforded by the First Amendment are subject to reasonable time, place and manner restrictions. Such restrictions cannot be “based upon either the content or the subject matter of speech or expressive conduct.” The restrictions must also serve a significant governmental interest.


Protests can occur on private property, or on traditional public forums, including parks, sidewalks, streets and areas in front of government buildings. Protests on private property require the consent of the property owner. The property owner can also impose rules that restrict what speech and conduct is permissible. Public forums are held in trust for public use, including the right of assembly and for communicating thoughts. Protests in these areas may not block access to the buildings or interfere with the operation of the building or its occupants. Permits are not required to assemble in streets or sidewalks provided the demonstrations do not block traffic. The safety and convenience of those using the public forum can be considered. Crowd control in public areas is a significant safety issue. In this instance, law enforcement officers can require that protestors move if pedestrian or vehicle traffic is delayed or if a safety issue arises.  Violence, property damage and other criminal activity are not protected, even if it occurs as a part of the protest. During a lawful protest on public property, participants and observers can photograph and record anything in plain view, including interactions with law enforcement.


Some protests may be considered marches or rallies based on their size or area of occupation and require a permit to be lawful. Permits cannot be denied because any member of society feels the idea is offensive or disagreeable. Permits are typically issue by local city or county officials and require that an application be submitted in advance of the planned event. However, the government cannot use these procedures to prevent a protest in response to a breaking news event.  Protesters and counter protesters must be treated equally by government officials and law enforcement officials.


If a protest presents a clear and present danger, disorder, destruction of property, threat to public safety, or interferes with traffic, law enforcement may issue a dispersal order to end the protest. This order must be given in a manner that is clear and gives notice to the protesters of the time to disperse and the consequences of non-compliance. A reasonable period of time and opportunity must be given to comply with the order.


If you believe your right to a peaceful protest has been violated, you have been arrested for protesting, or you have additional questions about the right to protest, let us help you today!  Contact The Robinson Law Firm, P.A. for a free consultation. Give us a call at 252-758-4100.


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