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Rules of thumb for ‘lawful’ protest

Protest in the street is a ‘First Amendment’ constitutional right; there is a lawful way to exercise this without incurring trouble with the law                     Clearly, the Trump Administration has gotten a lot of folks riled

Protest in the street is a ‘First Amendment’ constitutional right; there is a lawful way to exercise this without incurring trouble with the law                    

Clearly, the Trump Administration has gotten a lot of folks riled up, excited, and charged to protest. Actually, the recent trend follows the lead of organizations such as Black Lives Matter (BLM), which has successfully forced debate on vital issues of fundamental fairness including criminal justice.

Exercising your constitutional right of free speech is central to the American experience. However, the questions become, “what do I do?” and, even more importantly, “how do I do it?  The following are a few practical ideas for those contemplating hands on action, whether as a group such as BLM or as an individual with any organization seeking to use protest to advance a cause, now and in the future.

Always follow the law

The First Amendment protects the right to free speech. “Time, Place and Manner” restrictions are placed on First Amendment activity. Time restrictions regulate when individuals may express themselves; cases have stated that the government may curtail or prohibit speech to address legitimate society concerns, i.e. traffic and crowd control. As to place restrictions, the three recognized forums of public expression are traditional public forums (parks, sidewalks, streets), limited public forums (courthouses, public universities), and nonpublic forums.

Depending on the forum of expression, there are sliding scales on the regulation of speech. There is no right to “speak” on someone’s private property. As to manner of speech, the American Civil Liberties Union reminds us that the First Amendment covers all forms of communication, including music, theater, film, and dance. The Constitution also protects actions that symbolically express a viewpoint (“Symbolic Speech”) such as holding a candlelight vigil, or even flag burning.

Acts of civil disobedience that involve illegal conduct are not constitutionally protected, so be ready for arrest if you so engage. You should be cautious about participating in protests related to actions of the Trump Administration if you are not a U.S. citizen. While certain representations have been made about who is and is not “ok” under this recent executive order travel ban, we will not know for certain until all of the smoke clears.

The Bible says “be angry and sin not.” If you want to take part in a protest, understand that doing so legally makes the most sense. This is all the more important for groups like BLM, who are unfairly considered violent, and whose very name sometimes evokes fear from those (including those in power) that do not do the work to ascertain good intentions and responsible conduct. If you are engaging in any illegal activity, it will take away from the value of your protest.

Some of the most effective protest in recent American history involved the Civil Rights movement of the 1960s. The people taking part in those protests were disciplined and non-violent, and moved the nation’s “moral meter” toward justice. Though they were civilly disobedient at times, remember that in the 60s an African-American sitting at an all-white lunch counter was breaking the law. Today’s protestor has a much better chance of both making a point and being legally compliant. So, there should be no destruction of property, obstructing traffic, or personal conduct (drugs and alcohol) that could detract from the weight of your message or get you arrested (at worst).

Identify with compliant protesters

Many recent protests have grown in volume beyond the expectations of the organizers. Sometimes this means less control over what people do. The recent situation at the University of California, Berkeley was unfortunate because, in forcing the event to be shut down, the real story was the hurling of smoke bombs and destruction of property and not the hateful message of the scheduled speaker.  Even though non-marchers may have been responsible, those that are threatened by the cause will connect the violence to the movement, no matter how inaccurate or unfair.

Bearing this in mind, organizers and participants should have some written information about the clear objectives of the protest event and how matters will proceed with the objectives in mind. The information should emphasize lawful conduct. To the extent that there are some “rabble rousers” that seek to shake things up, organizers should find ways to connect themselves to those protesting peacefully and lawfully. Ideally, this will distinguish them from those behaving unlawfully to discerning law enforcement, as well as observers who can be convinced by the discipline with which the message is conveyed. If you make it a point to associate with people following the law, chances are much better you will not be arrested or harassed. The easiest way to do this is to come with groups of like-minded people, and organizations, particularly people you know.

Know your rights

Law enforcement officers may not take the time to figure out who is compliant and who is not. Understanding what you can and cannot do, and what the authorities can and cannot do, is imperative. If an officer asks a question, find out if you are being detained. If so, ask why. Police cannot require you to answer questions unless you are being detained. If you are not, respectfully walk away. Despite the foregoing, you do have to answer basic information such as name, address, and date of birth. Any questioning beyond that, you have the right to an attorney.

Without an attorney present, do not answer any further questions. Just say, “I want to remain silent and speak with a lawyer.” Police cannot make you open your phone if it is password protected, so have it on that mode as opposed to fingerprint. You can photograph or video officers, but you cannot trespass or obstruct while doing it  Pick your battles; know your rights and exercise them. Remember the group’s larger goals are not served by antagonizing police or escalating the situation, if you can avoid it. If it “goes down” and arrest results, you are entitled to three calls within three hours of arrest or immediately after booking.

If you have children under 18, you are entitled to two additional calls to arrange childcare. Know that if many people are arrested at once, sometimes such compliance can go by the wayside, and the experience can be more drawn out and uncomfortable. Be prepared for this.  Conviction is not a sure thing if your First Amendment Rights have been violated.

Determine contact persons ahead of time

Take information with you that would allow you to easily contact those you would need to should arrest or other notable events occur. In fact, take the time beforehand to identify and make contact with the individuals that could help you in a jam. For instance, organizations like the National Lawyers Guild and the ACLU have been on the front lines in providing advice related to protests, as well as the objects of the protest such as the recent executive order banning travel. Make contact ahead of time with those organizations to let them know what you are doing so that you have a “live body” to call with an organization should things go south.  Have key numbers available on your person; this could include writing info with a sharpie on your arm.

Come prepared

You should have a valid government issued ID with you at all times. Also, you should dress appropriate to the setting in terms of weather, so you don’t have to stop your participation because you are inappropriately dressed. Bring water and snacks. Have a contact person for your group that is not attending the demonstration, including someone with a landline phone so they can be contacted if need be. Bring quarters so that you could use a public phone if necessary.

In short, if you desire to exercise your constitutional right to free speech as part of a demonstration or protest, be as smart about it as you can. Have in your mind what you will be doing, be assured that it follows the law, and avoid illegal reactionary conduct. Know who your contacts are, both on and off site, so that you have the best chance of getting home safely, of finding out quickly if someone has been arrested, and of knowing you are doing everything you can for a protester in any distress. The foregoing gives you the best chance for your participation to be safe and effective.




Joe Richardson, Esq. is a native son of South-Central Los Angeles, and an attorney practicing tort, contract, and labor, and employment law in Southern California for more than 15 years. He also teaches and speaks on legal issues.


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