Jonah Patel
The First Amendment of the US Constitution protects the right to free speech and peaceable assembly, which includes the right to protest. However, this right is generally limited to public spaces, and private property owners may control what happens on their property. While the government cannot prohibit peaceful gatherings for political purposes in public spaces, it can impose time, place, and manner restrictions on speech. For instance, the government may require permits for large protests to prevent disruption to traffic and prohibit unreasonably loud demonstrations. The First Amendment also does not protect civil disobedience, which is a peaceful but unlawful form of protest, and protesters can be arrested for trespass if they are on private property without the owner's consent.
| Characteristics | Values |
|---|---|
| Right to protest on private property | The First Amendment does not give the right to engage in free speech activities on private property without the owner's consent. However, shopping malls are an exception in California. |
| Right to protest on public property | The First Amendment protects the right to protest on public property, including streets, sidewalks, and parks. |
| Right to free speech | The First Amendment protects the right to free speech, even if it is unpopular. However, it does not extend to libel, slander, obscenity, "true threats," or speech that incites violence or law-breaking. |
| Right to peaceful assembly | The First Amendment protects the right to peaceably assemble and petition the government. |
| Right to protest as a non-resident | The First Amendment protections apply to all residents of the U.S., regardless of immigration status. However, arrests during protests can impact residency applications. |
| Right to protest as an employee | Employees have the right to engage in political protests during non-working hours. Employers cannot discipline, fire, or retaliate against employees for their political activities during free time. |
| Social media and the First Amendment | Social media sites are owned by private entities and are not subject to First Amendment constraints. They can set their own rules for regulating or restricting speech. |
| Protests on college campuses | Protests on public college campuses are treated like protests on other public property and are bound by First Amendment constraints. Private colleges are not governmental entities, so students do not have the same First Amendment rights. |
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What You'll Learn
Free speech and the First Amendment
The First Amendment of the United States Constitution protects the right to free expression and peaceful protest. It states:
> "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."
The First Amendment protects the right to express an opinion, even if it is unpopular. This includes the right to criticise the government without fear of retaliation. However, this right does not extend to libel, slander, obscenity, "true threats", or speech that incites imminent violence or law-breaking.
The First Amendment also protects the right to peaceful assembly and to petition the government for change. This includes the right to engage in civil disobedience, as long as it is peaceful. However, demonstrators who engage in unlawful activities, even if they are peaceful, can be arrested. Additionally, the government can impose "time, place and manner" restrictions on speech, such as requiring permits for large protests or prohibiting unreasonably loud demonstrations.
While the First Amendment protects free speech and assembly in public spaces, it does not generally apply to private property. Private property owners can control what happens on their property and may prevent protests without consent. Shopping malls are an exception in California, where courts recognise malls as the "functional equivalent" of a traditional public gathering place.
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Peaceful protest rights
The First Amendment of the US Constitution protects the right to free expression and peaceable assembly. This includes the right to engage in peaceful protest in "traditional public forums" such as streets, sidewalks, and public parks. Courts have repeatedly held that the First Amendment's protections for free expression encompass the public's right to protest through free speech, peaceable assembly, and petitioning the government for change.
However, this right to peaceful protest is subject to certain limitations and only applies to public spaces. The government can impose "time, place, and manner" restrictions on speech, such as requiring permits for large protests or prohibiting unreasonably loud demonstrations that disturb others. These restrictions must be reasonable and not based on content. Additionally, the First Amendment does not protect unlawful activities carried out as a form of protest, such as blocking vehicular or pedestrian traffic without a permit, or harassing people.
While the First Amendment protects free speech and assembly rights, it does not grant the right to engage in these activities on private property without the owner's consent. Private property owners generally have the right to control what happens on their property and can prevent protests from taking place. Shopping malls are an exception in California, where courts recognize them as the modern-day equivalent of a traditional public gathering place, thus protecting free speech rights in these spaces.
It is important to note that local regulations and ordinances may vary, so it is advisable to check the specific laws in your area before engaging in any protest activities. Additionally, while counter-demonstrators have the right to be present, it is the responsibility of the police to control the crowd and ensure that protests remain peaceful.
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Private property rights
The transfer of land from federal government to private ownership is believed to encourage economic development and improve land management. The 5th and 14th Amendments of the United States Constitution protect private property rights, including the basic right to acquire, possess, and transfer real property. Similarly, the 5th Amendment protects the freedom to buy, sell, and utilise property, underpinning all real estate transactions and markets.
While the First Amendment protects free speech rights, it generally does not extend to private property without the owner's consent. However, California recognises shopping malls as the "functional equivalent" of traditional public gathering places, thus protecting free speech rights in privately owned shopping centres. Nevertheless, certain narrow restrictions on speech rights exist, including libel, slander, obscenity, true threats, and incitement of violence or law-breaking.
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Public property rights
The First Amendment to the United States Constitution protects the right to free expression and peaceable assembly. This includes the right to protest through free speech, as long as it is not libel, slander, obscenity, "true threats", or speech that incites imminent violence or law-breaking.
Public property is owned by the state and can be rivalrous or non-rivalrous. It is managed and controlled by a government agency or organisation. Examples include streets, sidewalks, and public parks, which have traditionally been used as venues for demonstrations. The government can place certain restrictions on protests, such as requiring permits to regulate competing uses of the area and to ensure protesters respect reasonable time, place, and manner restrictions. However, the government cannot prohibit marches on public sidewalks or streets, or rallies in most public parks or plazas.
Nonpublic forums are public property that has not traditionally been opened for public expression, such as polling places, military bases, and airport terminals. The government can restrict speech in these locations, but the restrictions must be reasonable and viewpoint-neutral.
Private property rights are a pillar of capitalist economies and legal systems. They give the owner the ability to control, use, transfer, hold, sell, or rent the property for profit. Private property can be owned by individuals, businesses, or governments. While the First Amendment does not give the right to engage in free speech activities on private property, there are exceptions, such as shopping malls in California, which are recognised as the modern-day equivalent of a traditional public gathering place.
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Limitations on protest rights
The First Amendment protects the right to assemble and express views through protest. However, there are limitations to these rights, which are outlined below:
Limitations on Location
The right to protest is strongest in "traditional public forums," such as streets, sidewalks, and parks. Protestors likely have the right to speak out on other public property, like plazas in front of government buildings, as long as they are not blocking access or interfering with the property's intended use. There are also nonpublic forums—public property that has not traditionally been opened for public expression—where the government can restrict speech as long as the restrictions are reasonable and viewpoint-neutral. Examples include polling places, military bases, and airport terminals.
Protesting on private property is generally not protected by the First Amendment unless the owner has given permission. Shopping malls are an exception in California, where courts recognize malls as the modern-day equivalent of a public gathering place.
Limitations on Conduct
The First Amendment does not protect libel, slander, obscenity, "true threats," or speech that incites imminent violence or law-breaking. Protestors can be punished for crimes like vandalism and violence, even if they occur as part of an expressive activity. For example, fighting with counter-protesters or spray-painting a political slogan on a wall can be punished because these acts are crimes, regardless of their connection to expression.
Limitations on Permits
The government can require permits to regulate competing uses of an area and to ensure protestors respect reasonable time, place, and manner restrictions. Certain events may require permits, such as marches or parades that block traffic or require street closures, large rallies with sound amplification, or rallies over a certain size in most public parks or plazas. While police cannot use permit procedures to prevent a protest in response to breaking news, they can impose restrictions on routes or sound equipment if necessary for traffic control, public safety, or effective communication with the intended audience.
Limitations on Campus Protests
Some bills have been introduced to restrict protests at public and private institutions of higher education. For example, a bill introduced in Arizona in 2020 would have required the removal of unauthorized protest encampments on state college and university campuses and made individuals or groups criminally liable for trespass and damaging public property. Another bill, introduced in May 2024, would disqualify certain campus protesters from federal student loan forgiveness programs and bar federal funding for colleges and universities that fail to remove prolonged protest encampments.
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Frequently asked questions
No, demonstrations on private property are not constitutionally guaranteed. The First Amendment does not give people the right to engage in free speech activities on private property unless they own or lease the property or have the owner's permission. Private property owners may generally control what happens on their property and can prevent protests on their property.
You can engage in a demonstration or protest in a "traditional public forum" such as streets, sidewalks, or public parks. The government can impose "time, place, and manner" restrictions on speech in these forums, such as requiring permits for large protests or prohibiting unreasonably loud demonstrations that disturb others. You can also protest in "designated public forums," which are a type of government property that the government has opened for public use, such as public event spaces or areas in front of government buildings.
Protests in public spaces are subject to certain limitations. The government can impose reasonable "time, place, and manner" restrictions on speech in public spaces. For example, they may require permits for large protests or prohibit protests at certain times or in certain locations to prevent disruption to traffic or residents. Protests that block vehicular or pedestrian traffic without a permit are illegal, and protesters do not have the right to block building entrances or physically harass people.
