1st Amendment Right to Free Speech & Protest

The First Amendment of the U.S. Constitution states in part, quote, “Congress shall make no law 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.

In short, this means that you have a constitutional right to partake in peaceful public protest against a President who may think that he is a King, that is above the law and the U.S. Constitution, and to declare that we have no Kings in the United States.

The U.S. Supreme Court ruled in a case called Hartman v. Moore in 2006, quote, “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech.

In fact, speech that is political in nature is among the highest levels of protected speech. The U.S. Supreme Court has also recognized that the First Amendment also protects expressive conduct, such as the use of signs, flags and middle fingers.

The U.S. Supreme Court in fact found that burning the American flag is permissible as First Amendment protected conduct in a case called Texas v. Johnson in 1989. While I do not personally support this activity as a U.S. military veteran, the U.S. Supreme Court Texas v. Johnson, found that when Johnson burned an American flag as part of a political demonstration, his conduct was quote, “sufficiently imbued with elements of communication, to implicate the First Amendment.”

The U.S. Supreme Court has gone as far to say, in a case called Brandenburg v. Ohio in 1969, that quote, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 

The U.S. Supreme Court in a case called R.A.V. v. City of St. Paul in (1992) ruled, quote, “we have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”

First Amendment Filming

While the U.S. Supreme Court has not yet addressed this issue, several U.S. Circuit Courts of Appeals have found that taking photos and filming in public places is also protected First Amendment Conduct.

The Seventh Circuit Court of Appeals for example, in a case called Am. C.L. Union of Illinois v. Alvarez, in 2012 held quote, “the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”

Also know that the police generally cannot search the contents of your phone or make you delete contents according to the U.S. Supreme Court’s 2014 ruling in a case called Riley v. California.

Non-Violent Protest Only

Remember, if you plan to engage in protests this weekend, or any other time, keep it non-violent, in authorized public places and avoid taking out your frustrations on public or private property whether that be through vandalism, theft, looting or other destructive conduct. Also avoid blocking traffic or access to public and private buildings. The First Amendment will not insulate you from accountability for criminal activity.

Disorderly Conduct

Always be mindful of disorderly conduct laws in your jurisdiction, which often times are fairly broad.

North Carolina

For example, in North Carolina, the disorderly conduct statute, NCGS, Sec. 14-288.4, defines disorderly conduct as quote, “a public disturbance intentionally caused by any person who does any of the following:

(1)  Engages in fighting or other violent conduct creating the threat of imminent fight or other violence;

(2)  Makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace”

Florida

In Florida, for example, the disorderly conduct statute, Fla. Stat. Sec. 877.03, states, quote, “Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree.”

Orders to Disperse

In whatever jurisdiction you are in, if law enforcement orders people in an area you are in to disperse, comply and leave as failure to leave may result in your arrest.

Police Encounters

If you are approached by law enforcement, it’s always best to remain polite, respectful and even keeled. You are protected by the Fourth Amendment of the U.S. Constitution from unreasonable searches and seizures of your person and your belongings.

Fourth Amendment

The Fourth Amendment states in part, quote, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Police Stops and Detentions

If you are stopped or detained by police, be polite, don’t resist, and ask, “Am I free to go?” Remember, until you ask to leave, being stopped is considered voluntary.

If the police respond, “no, you are not free to go”, then you are being detained. If you are being detained, politely ask what crime you’re suspected of committing.

In order to detain you, police must have a reasonable suspicion that you are engaged in or about to engage in criminal activity. That reasonable suspicion must be based on specific facts that the police can articulate. Police cannot detain you based solely on “inchoate and unparticularized suspicions or hunches.” There must be “some minimal level of objective justification” for making the stop.

Keep in mind though, if you feel that you are being unlawfully detained, ask to contact an attorney and let them sort it out.

The U.S. Supreme Court has stated in a case called United States v. Sokolow in 1989, quote, “The concept of reasonable suspicion, like probable cause, is not “readily, or even usefully, reduced to a neat set of legal rules.” In evaluating the validity of a stop we must consider “the totality of the circumstances the whole picture.”

Know that if you are stopped, if officers have a reasonable belief under the circumstances, they can conduct an exterior pat down of your body, known as a Terry stop, to feel for weapons for officer safety.

 Contact an attorney today if you believe your constitutional rights may have been violated. Set up a consultation today with Biazzo Law by sending an email request to alyssa@biazzolaw.com