first amendment Archives - Civil Rights Litigation Group

What are my rights if I protest the police?

May 27, 2020 | Civil Rights Law, Constitutional Rights, Police Misconduct

The most important thing to remember is that the First Amendment guarantees every person in America the right to peacefully assemble and protest.

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 right to protest is valued in our country and has led to many substantial changes over the past 200 years, such as the Civil Rights Act. When outrageous police abuse occurs — such as the killing of George Floyd in Minneapolis or the beating of Rodney King in Los Angeles — that conduct affects us all. Exercising your right to speak up and to protest could foster recognition, awareness, and much needed change in the future.

However, it’s important to remember that the Supreme Court has recognized limits to the exercise of our rights – when they could affect the rights of others. Just like freedom of speech doesn’t provide the right to publicly lie about someone or the right to yell fire in a crowded theater, the right to assemble does not mean that a protester has cart-blanche protection to commit otherwise illegal acts, such as vandalism, and there could be criminal repercussions for those who harm others.

Also, current law permits “reasonable time, place, and manner” restrictions by governments to limit some of the unintended adverse effects of those who gather to speak in local communities. Legal interpretations of what constitutes “reasonable” time, place and manner restrictions can be nuanced, but they usually permit municipal action to do things like restrict protesters from marching down the middle of busy streets or instituting non-discriminatory curfews to curb looting and vandalism. Protesters have more leeway regarding location and time when a protest is spontaneous, such as immediately after a major incident occurs that calls for public outcry, like the events in recent days. However, the protection for spontaneous association will likely be subject to greater “time, place, and manner” restrictions after initial protests erupt and/or after public safety concerns surface.

When can the police interfere with protests?

If a protest escalates to include violence and property damage, local law enforcement has the legal authority to intervene to quell that violence or to arrest perpetrators. They may also have the legal authority to stop protests on private property, those organized without a permit, or those that block public rights of way, such as on an interstate or major street.

As to the time or duration of protests, law enforcement can intervene if a curfew has been legally established and police have given you warning, time, and opportunity to safely leave. Police should act only to apply limited restrictions in a non-discriminatory and even-handed manner.

What am I allowed to record at a protest?

There have been a lot of contrary opinions written regarding what citizens can and can’t record, with respect to the police. And while some states have limits on where you can post recordings with audio, the visual part of recordings is protected by the First Amendment and can be posted online and shared.

You have a First Amendment right to record the police while they are performing public duties. As long as you aren’t interfering with or threatening them, and stay a fair distance away from officers performing official functions, the police DO NOT have the legal authority to demand that you stop recording. In fact, it’s always a good idea to record any encounter with the police if you think things might go bad for anyone involved. Phone recordings have been key in prosecuting police misconduct in recent years, especially with the quality of video that most cell phones can produce. As Will Smith said, “Racism isn’t getting worse, it’s getting filmed.”

Also, the police cannot legally demand your phone or confiscate it without a warrant, and those take time to obtain because they have to be signed by a judge. They also don’t have the authority to tell you to delete a photo or video. If you feel a confrontation may occur — especially one involving force — many have suggested complying, handing over the device, and then filing a complaint with Internal Affairs, the Office of the Independent Monitor (in Denver), or legal organizations like the ACLU or with local lawyers. But you absolutely have the right to retain possession of your phone along with any video or photos. If nothing else, quickly send or upload the media to someone before handing over your phone so that it cannot be deleted. The ACLU has developed a smart phone application that – once activated – will record and automatically upload any video taken from that phone to the ACLU for safe-keeping and later review:

https://www.aclu.org/issues/criminal-law-reform/reforming-police/aclu-apps-record-police-conduct

If you don’t like your own photo being taken or publicly shared, you should know that your presence at a public protest means you have given consent for your photo to be taken and potentially used, most commonly by the media. After-all, protests are meant to be matters of public interest. There are a few restrictions, but if you are uncomfortable with your photo showing up on social media or potentially the evening news, you should consider other forms of speech or wearing something that hides your identity.

What are the police allowed to do during a protest?

The first job of the police is to protect your right to peacefully assemble — both they and public officials have taken a vow to uphold the Constitution. If you are acting reasonably, within the confines of the law, then they have no authority to act against you or restrain you in any way. However, they are also charged with maintaining order and upholding the law, so if protesters or infiltrators start being violent or causing damage then the police will most likely take action. The concern for all of us is what form that action takes and whether it is proportionate to the public policy and/or legal justifications permitted under the law.

The main priority of police should be to de-escalate violence, but it has been shown time and again that the police often are the cause of violence. For example, if they start dropping tear gas canisters and firing rubber bullets at peaceful protesters before curfew has started, and without any legal and/or legitimate purpose, then they could be found liable for use of excessive force. This is one of the times when it is important to always be recording police on your phone.

What should I do if the police stop me or if I get arrested?

First of all, it’s always good to stay calm. Remember that sometimes the police just want to ask a question and you may not be suspected of doing anything wrong. The law permits police to ask questions without converting the contact into a seizure. Second, get your phone out and start recording. Finally, you always have the right to ask the police if you are being detained and/or free to go. If they indicate you are not being detained or are free to go, just calmly leave — you are under no obligation to speak to them. If they detain you, you have the right to ask why you are being detained.

If you are arrested or detained — whether justified or not — it’s best to remain calm and not resist. If other people are there, ask them to record everything they can. You do not have to speak to the police if you don’t want to — you have the right to remain silent. After you are booked, you will have the right to make a phone call so it’s a good idea to write a few numbers on your arm since your phone will be taken away. And it’s always a good idea to call a lawyer because while that conversation is privileged, the police do have the authority to listen in on calls to friends or family.

What should I do if I feel my rights were violated at a protest?

If you truly feel your rights were violated, the first step is always to gather evidence to support you. You have the right to sue for the violation of your rights and you should contact a civil rights attorney devoted to your rights. 42 U.S.C. Section 1983 of federal law permits those who are violated by official government actors (such as police) to seek redress in federal court. However, police officers are also covered by qualified immunity, which means they are shielded from civil liability if they didn’t break a clearly established law. That is one reason it is so important to record any interaction with the police as many of them are still not required to wear body cameras. Recordings remove much of the grey area of “he said, she said” when courts are charged with determining who is telling the truth. Video doesn’t lie.

We are here to help with protecting your Constitutional right to protest

If you have experienced problems with your civil rights being violated during a protest, please give us a call. We work diligently to protect constitutional rights. For a free, no-obligation consultation with the Civil Rights Litigation Group, contact our Denver CO law firm today at (720) 515-6165 or use our online contact form.

Protected speech and unprotected speech – what are my rights?

Nov 26, 2016 | Civil Rights Law

The First Amendment of the Constitution states that “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 to peacefully to assemble, and to petition the Government for a redress of grievances.” However, as you already know, free speech isn’t an all-inclusive principle, meaning that there are some instances of speech and expression that aren’t protected by the First Amendment. What is protected speech?

One reason for the continual examination of free speech is due to the Constitution’s vagueness. The Supreme Court attempted to further define free speech by stating, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson). This language restricts the government’s ability to constrain speech, but, as you may know, the limitations of speech and expression often depend on context, such as a corporate office or a school.

Free speech laws are extremely complex, and it’s critical to remember that free speech doesn’t protect things like defamation and libel, threats, false advertising, and more. As a civil rights attorney in Denver CO, attorney Raymond K. Bryant of the Civil Rights Litigation Group deals with issues regarding protected speech and unprotected speech. Below, we’ve included some basic information regarding free speech and your rights. If you’ve been a victim of discrimination, speech suppression, or First Amendment retaliation, call the Civil Rights Litigation Group in Denver CO today.

Differences between protected speech and unprotected speech

There are many exceptions to free speech that have been supported by the Supreme Court for some time. For example, the Court has decided that the First Amendment provides no protections for things like obscenity, child pornography, or speech that constitutes true threats or “fighting words,” which may produce a clear and present danger. The Court provides less than full protections for many other types of speech, including:

Commercial speech
Defamation, libel, and slander
Speech that might be harmful to children
Speech broadcasts on television and radio
Public employees’ speech

At the same time, the Supreme Court, as well as many government and nonprofit agencies, have contributed to the definition of protected speech as well. As a broad rule, virtually all other types of speech are protected, but the government may be able to regulate speech in certain circumstances. The government may attempt to regulate an act of free “speech” (including verbal communication as well as visual, art, music, theater, dance, literature, and more) through prior restraint. Additionally, acts that normally have the fullest First Amendment protections may still be restricted due to “regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

Examples of unprotected speech

To give you a better idea of what constitutes protected speech and unprotected speech (and therefore, your rights in Colorado when it comes to free speech), we’ve included a few examples of unprotected speech.

Subversive Advocacy. Individuals can express lawlessness, but there is a limit to this protection. For subversive advocacy (expression promoting lawlessness) to fall outside of First Amendment protections, it needs to 1) be directed at producing imminent lawless action and 2) the speech needs to be likely to produce lawless action.
Fighting Words. Similar to the above example, speech cannot incite clear and present danger and violence. However, fighting words often need to be insults personally directed at a person and not political statements that the person would find offensive. Provocative political speech is often fully protected, but not clear and directed insults designed to start a fight or a threat.
True Threats. True threats are defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” As such, the speaker may not need to actually carry out the threat, but only to intently produce fear of bodily harm or death in the victim.
Obscenity. Material, speech, and/or expression must meet the following three standards for it to be considered obscene and not protected by First Amendment laws. These three standards include:
- Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest
- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Child Pornography. Plainly put, child pornography is an unprotected category of expression.
Commercial expression that concerns illegal activity, or commercial expression that is false or misleading. Commercial speech is only protected if it contains legal activity and if it’s content is true and not misleading.

Contact the Civil Rights Litigation Group in Denver

First Amendment and protected speech legal cases can be extremely complex, but at the same time, it is clear when someone is making true threats, producing obscene material, or producing false advertising and misleading information. Fortunately, if your right to free speech is being regulated or restricted in any way, or you’re facing adverse repercussions for your speech, and your speech doesn’t fall under the umbrella of “unprotected speech,” then call the Civil Rights Litigation Group in Denver, CO. We offer free, no-obligation consultations. Call our law offices today at 720-515-6165.