Does the First Amendment Protect Protestors?

Protests have been an integral part of conversations around social issues in the United States since the nation’s founding. From the protests that took place nationwide in the wake of the death of George Floyd in 2020, to civil rights marches in the 1960s, all the way back to the Boston Tea Party. “The right of the people to peaceably assemble” is enshrined in the Constitution’s First Amendment, protecting the right to peaceful protest from government intervention. But like most constitutional rights, the right to peaceful protests has limits that the Supreme Court has had to articulate.

What the First Amendment Says

"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."

Frequently Asked Questions

Is protesting protected by the First Amendment?

The Constitution protects “the right of the people to peaceably assemble.” So while protesting is a time-honored practice in the United States, the operative word is “peaceably.” The Supreme Court has noted that a protest can be shut down if it is associated with “violence and intimidation.” Furthermore, the government can regulate the time, place, and manner in which a protest is conducted.

Can you lose your job for participating in protests?

Keep in mind that the First Amendment protects our rights against infringement by the government. Private entities, like many employers, can make the decision to fire someone for almost any reason that does not discriminate against their race, religion, or the like. However, some states have laws in place that protect employees from losing their job for asserting their First Amendment rights.

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.1 Striking down a flat prohibition on picketing to influence or induce someone to do something, the Court said: 

“In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.”2

The Court further reasoned that the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion.3

The Court soon recognized several caveats. Peaceful picketing may be enjoined if it is associated with violence and intimidation.4 Although initially the Court continued to find picketing protected in the absence of violence,5 it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.6 These cases proceeded upon a distinction drawn by Justice Douglas. 

Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulations.7 The apparent culmination of this course of decision was Teamsters Union v. Vogt, in which Justice Frankfurter broadly rationalized all the cases and derived the rule that a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.8 Although the Court has not disavowed this broad language, the Vogt exception has apparently not swallowed the entire Thornhill v. Alabama rule.9 The Court has indicated that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment.10

More on the First Amendment

When Can the Government Regulate Free Speech?

First Amendment Freedom of Assembly and Petition

Footnotes

1.    Thornhill v. Alabama, 310 U.S. 88 (1940). Picketing as an aspect of communication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937).

2.    310 U.S. at 102.

3.    310 U.S. at 104–05. See also Carlson v. California, 310 U.S. 106 (1940). In AFL v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an injunction against peaceful picketing based on a state’s common-law policy against picketing in the absence of an immediate dispute between employer and employee.

4.    Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941).

5.    Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942)Carpenters & Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942)Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).

6.    Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (upholding on basis of state policy forbidding agreements in restraint of trade an injunction against picketing to persuade business owner not to deal with non-union peddlers); International Bhd. of Teamsters v. Hanke, 339 U.S. 470 (1950) (upholding injunction against union picketing protesting non-union proprietor’s failure to maintain union shop card and observe union’s limitation on weekend business hours); Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950) (injunction against picketing to persuade innkeeper to sign contract that would force employees to join union in violation of state policy that employees’ choice not be coerced); Local 10, United Ass’n of Journeymen Plumbers v. Graham, 345 U.S. 192 (1953) (injunction against picketing in conflict with state’s right-to-work statute).

7.    Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776–77 (1942) (concurring opinion).

8.    International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957)See also American Radio Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215, 228–32 (1974)NLRB v. Retail Store Employees, 447 U.S. 607 (1980)International Longshoremens’ Ass’n v. Allied International, 456 U.S. 212, 226–27 (1982).

9.    The dissenters in Vogt asserted that the Court had come full circle from Thornhill. 354 U.S. at 295 (Justice Douglas, joined by Chief Justice Warren and Justice Black).

10. NLRB v. Fruit & Vegetable Packers, 377 U.S. 58, 63 (1964) (requiring—and finding absent in NLRA—clearest indication that Congress intended to prohibit all consumer picketing at secondary establishments). See also Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) (indicating that, where violence is scattered through time and much of it was unconnected with the picketing, the state should proceed against the violence rather than the picketing).

 

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