Free Speech Rights, Free Speech Zones, Interactions with Police, Resources and MORE
The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy. But it is also unfortunately true that governments and police can violate this right—through the use of mass arrests, illegal use of force, criminalization of protest, and other means intended to thwart free public expression.
Standing up for your right to protest can be challenging, especially when demonstrations are met with confusion, excessive force, or violence. But knowing your rights is the most powerful tool you have against the stifling of your voice.
These are suggestions, not complete legal advice. Be sure to consult a lawyer.
FREE SPEECH RIGHTS
Q. Can the police demand that protesters remain inside a ‘free-speech zone’?
A. Sometimes. For the government to restrict protesters to a certain space—or to keep them from a space that’s otherwise open—it must follow the usual rules regarding time, place and manner: Restrictions must be reasonably related to legitimate goals such as reducing an identifiable security risk, they mustn’t prevent substantially more expression than is necessary to achieve those goals, and they mustn’t be motivated by the protesters’ message. The restrictions must also allow protesters to have a reasonable opportunity to effectively communicate their message to their intended audience.
[Read more about the San Diego ACLU’s successful challenge to the 1996 GOP Convention’s efforts to restrict protesters to a distant “free speech zone.]
Q: Can my free speech rights be restricted because of what I want to say — even if it’s controversial?
A: No. The First Amendment prohibits restrictions based on the content of the 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 non discriminatory and narrowly drawn “time, place, and manner” restrictions on the exercise of First Amendment rights.
Q: Where can I engage in free speech activity?
A: Generally, all types of expression are constitutionally protected in traditional “public forums” such as streets, sidewalks, parks, and plazas. Additionally, some free speech activity may be allowed in certain other government-owned locations or facilities, for example public universities or colleges. You should check with the administrative or security offices of such locations or facilities to find out what is allowed, where, and when.
In California, certain forms of expression may be allowed in certain types of shopping malls. You should check with mall administration or security to find out what is allowed, where, and when. Otherwise, the general rule is that the owners of private property can set rules for speech on that property. 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). But your speech may not be restricted if it is taking place on your own property or with the consent of the property owner.
Q: Do I need a permit before I engage in free speech activity?
A: Not usually; however, certain types of events require permits. Generally, these events are: 1) a march or a parade that does not stay on the sidewalk and other events that require street closures; 2) a very large rally; 3) activity which obstructs vehicle or pedestrian traffic. For example, the City of San Diego requires a permit for certain “[e]vents or organized activities for 75 or more people that involve street closures or include event components requiring the coordination of a number of city departments or other agencies such as the use of alcohol, on-site cooking, food sales, or large-scale temporary structures.
Many permit procedures require that applications be filed with the police department well in advance of the event. However, a permit may be obtained on short notice, or may not be required at all, if the event is organized in response to unforeseeable and recent occurrences.
Q: Can a speaker be silenced for provoking a crowd?
A: Generally, no. Even the most inflammatory speaker cannot be punished for merely arousing the audience. A speaker can be arrested and convicted for incitement through speech only if s/he specifically intends to incite imminent illegal action and the speech is in fact likely to incite imminent illegal action.
Q: Do counter-demonstrators have free speech rights?
A: 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.
Q: Is heckling protected by the First Amendment?
A: Although the law is not settled, heckling should be protected unless you are attempting to physically disrupt an event or are drowning out the other speakers.
Q: If organizers have not obtained a permit, where can a march take place?
A: If groups of individuals stay on the sidewalk and obey traffic and pedestrian signals, their activity is protected. They may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not obstruct or detain passers-by.
Q: Can police restrict the size or type of signs or how they are carried or displayed?
A: Yes, but only to the extent necessary to protect safety without excessively impairing the right to display signs. For example, as San Diego does, a city may prohibit the use of metal stakes, clubs, and pipes at rallies, parades, or demonstrations, and it may require that any wooden stakes used for signs must be 1/4 inch or less in thickness and 2 inches or less in width. But a city may not entirely prohibit the carrying of signs attached to any wooden or plastic handles.
Q: What other types of free speech activity are constitutionally protected?
A: 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 costumes or holding a candlelight vigil.
Q: May I distribute leaflets and other literature on public sidewalks?
A: Yes. Pedestrians on sidewalks may be approached with leaflets, newspapers, petitions, and solicitation for donations. These types of free speech are legal as long as entrances to buildings are not blocked and passers-by are not physically detained. No permits are required.
IF YOU ARE ARRESTED OR TAKEN INTO CUSTODY
What you say can be used against you. You have the right to talk to a lawyer before you talk to police about your case. Do not give any explanations, excuses, or stories. You do not have to give a statement or sign any statement you might give.
Your person and belongings can be searched, except that police must get a warrant to search your cell phone.
The police are entitled to basic biographical information — i.e., your name and address — and may take your fingerprints and photograph.
Ask to see a lawyer immediately. If you cannot pay for a lawyer, you have the right to a free one. Ask the police how a lawyer can be contacted.
Within a reasonable time after your arrest or booking, you have the right to make a phone call to a lawyer, bail bonds person, a relative, or any other person. The police may not listen to the call to your lawyer. Conversations with people other than your lawyer are not confidential.
You will be interviewed by a court agency so that bail can be assessed. You do not have to answer their questions, but giving accurate information will speed the process.
Sometimes you can be released without bail or have bail lowered. Ask the judge about it.
If you are arrested without a warrant, the police must release you within 48 hours after arrest unless a judge decides there is probable cause to hold you beyond that time. The judge may make that decision by looking at documents without holding a hearing. In California, you must be brought before a judge within 48 hours of your arrest, excluding Saturdays, Sundays, and holidays.
Click here for details on how to download the ACLU’s Mobile Justice app.
Click here to read our Activist’s Guide to Free Speech, Protests, & Demonstrations in California.