Does the First Amendment Protect Protestors?
By Balrina Ahluwalia, Esq. | Legally reviewed by Edward Maggio, Esq. | Last reviewed August 07, 2024
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From the Boston Tea Party to Black Lives Matter, protests have consistently played an important role in shaping American history. In this article, we examine the Supreme Court’s treatment of protests as a form of expression protected by the First Amendment.
In 1791, America adopted the Bill of Rights. These were the first ten amendments to the U.S. Constitution. They championed personal freedoms and curtailed governmental authority. The First Amendment embodies these democratic principles, stating:
“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.”
From this language, we can see these freedoms begin as a limitation on Congress. In other words, Congress may not pass laws that restrict our rights to:
By interpreting the First and Fourteenth Amendments, the Supreme Court has extended this limitation on Congress to limit government action of any kind and at any level.
We sometimes refer to government action in this context as state action.
The First Amendment generally constrains government regulation of private activity. It doesn’t, for example, limit government restrictions on government speech. And it doesn’t generally constrain private entities.
For example, private employers aren’t subject to First Amendment constraints. Generally, they can hire or fire you for any nondiscriminatory reason. However, some states have laws that prohibit private employers from firing employees for exercising their First Amendment rights.
Protected Activities Under the First Amendment
The Supreme Court has also determined that free speech rights protected by the First Amendment include the written word and other forms of expressive conduct. For example, messaging on a t-shirt or wearing an armband protesting a war are both forms of speech or expression protected by the First Amendment.
The Court has also determined that free expression includes freedom of association. Although this freedom isn’t mentioned in the First Amendment, the Court has deemed it “an indispensable means of preserving” other First Amendment rights. Therefore, the Court recognizes a First Amendment right to free association for the purpose of engaging in assembly, speech, and other First Amendment activities.
Does the First Amendment protect Protests?
The First Amendment right to peaceably assemble protects our right to gather together and/or protest on public property. The right to petition the government for a redress of grievances means the public is entitled to have their issues heard by the government. The right to air grievances without fear of subsequent punishment or censorship is fundamental to the concept of democracy.
The Court has established that these rights are just as fundamental as free speech. Particularly in modern times, the Court uses freedom of expression to mean protected speech that includes other First Amendment rights like assembly and petition.
So, our First Amendment rights are protected from government intrusion. However, these rights are not absolute. The Supreme Court has established several permissible restrictions on expression.
The Right to Protest and Public Safety Concerns
The First Amendment protects peaceful demonstrations in public areas. However, they may be subjected to reasonable regulation.
The Supreme Court has established that time, place, and manner restrictions on First Amendment rights are generally constitutional as long as they are content-neutral. Likewise, the government may lawfully stop a protest that’s accompanied by violence and intimidation. This is because the right is to “peaceably” assemble.
The Court has developed legal standards and frameworks for evaluating whether government restrictions on these rights violate the First Amendment. They generally involve weighing the state interest served by the government restriction against the First Amendment freedoms burdened by the restriction.
What is an Example of a Protest Restriction that Violates the First Amendment?
For instance, the government cannot typically prohibit peaceful gatherings for political purposes. Any government limitations on such assemblies must meet the relevant legal criteria to be deemed constitutional.
This right to peaceful protest is subject to limitation and only applies to public spaces. Expression that occurs at traditional public forums like parks and sidewalks enjoys the strongest First Amendment protection. Protests often occur at these public forums.
Protesting typically involves a type of assembly and political speech or public speech encouraging action about perceived injustices. The Supreme Court has established that political speech is entitled to “robust protection under the First Amendment.”
Private Property
Private property owners may generally control what happens on their own property. For example, they can prevent protests on their property, and violators could be arrested for trespass.
Likewise, social media sites are typically owned by private entities. They are not subject to First Amendment constraints. Thus, they can set their own rules for regulating or restricting speech.
Protests on College Campuses
On the other hand, public colleges and universities are owned and operated by the government. This means they are bound by First Amendment constraints. As a result, protests on public campuses are generally treated like protests on other public property. The Supreme Court has addressed several First Amendment cases stemming from public college protests.
Private colleges and universities, on the other hand, aren’t governmental entities. Accordingly, students at these schools don’t enjoy the same First Amendment rights as students at public schools. The First Amendment doesn’t constrain schools, and they may set their own rules and policies. However, they are heavily regulated because of their federal funding.
Supreme Court Cases on Protests and Picketing
Supreme Court decisions have long recognized the First Amendment rights associated with parades and picketing. Still, these forms of expression protected by the First Amendment may be regulated. After all, civil disobedience often requires limits for law enforcement to maintain order and public safety.
Some important First Amendment principles emerge from the Supreme Court’s handling of labor disputes.
Thornhill v. Alabama
In 1940, the Court first recognized that the First Amendment protects picketing. The Thornhill v. Alabama Court reviewed a state law criminalizing picketing around a business to interfere with it.
Thornhill was a labor union president. He joined a labor strike picketing his former employer. The police arrested him. He challenged the Alabama law on First Amendment grounds.
The Court concentrated on the freedoms of speech and press. These liberties safeguard the right to participate in public and truthful discourse concerning matters of public interest.
This freedom of discussion necessarily encompasses disseminating information related to matters of public concern, including labor disputes. And the people should be free to engage in such discussions without fear of punishment.
The Court explained that First Amendment rights were intended to facilitate robust discourse and open exchange of ideas. Democracy can only work if Americans believe the government is receptive to public opinion.
Accordingly, people must be free to form opinions and influence those of others. This means that the First Amendment must protect the types of communication that inform public opinion.
The Alabama law shut down practically every possible communication that, “may enlighten the public on the nature and causes of a labor dispute.” The state contended the law protected the state interest in preserving the peace.
However, they failed to satisfy the (now discredited) clear and present danger test. The Court further reasoned that places like public streets were appropriate for the “dissemination of information and opinion” surrounding a labor dispute.
Here, the law applied to Thornhill, allowing the police to arrest him for silently walking back and forth on a public sidewalk with a factual sign. The sign included a true statement that the business didn’t employ union men from the American Federation of Labor.
Issues like working conditions and others that spark labor disputes must be in the public arena. This is necessary for a democracy to function and shape the future of an industrialized society.
The opportunity for expression in the ideas and public opinion marketplace should be protected. Restrictions on these First Amendment freedoms can only be tolerated to avert the clear danger of substantive evils.
This danger wasn’t always present in the picketing activity banned by Alabama law. Thus, the state’s blanket prohibition on picketing to influence or induce action unjustifiably burdened Thornhill’s First Amendment rights.
Milk Wagon Drivers Union v. Meadowmoor Dairies
The following year, the Court adapted its position in Milk Wagon Drivers Union v. Meadowmoor Dairies. The Milk Wagon Court acknowledged that “peaceful picketing is the workingman’s means of communication.”
Still, the Court upheld an injunction prohibiting peaceful protest because of the violence that accompanied it. The Court explained that an injunction against peaceful picketing “enmeshed with contemporaneously violent conduct” doesn’t violate the First Amendment.
For the next few years, the Court heard several picketing cases. In the absence of violence, it consistently upheld the right to picket.
In 1949, however, it began to recognize another exception. Specifically, the Court held in several cases that the free discussion associated with peaceful labor dispute picketing may be restricted if the picketing goes against valid state policies.
Bakery Drivers Local v. Wohl
As Justice Douglas noted in his Bakery Drivers Local v. Wohl concurrence, certain unique aspects of picketing subject it to restrictions. Regardless of the ideas and information communicated, picketing by an organized group involves:
- More than just free speech
- Patrol of a certain place
- Potential action induced by a picket line
Hughes v. Superior Court of California
In the 1950 Supreme Court case of Hughes v. Superior Court, the Court upheld an injunction against picketers. The picketers wanted a local grocery store to implement quota hiring for Black employees. The Court held that picketing to demand the implementation of a racially discriminatory hiring policy went against public policy. Thus, the injunction wasn’t held to violate the picketers’ First Amendment rights.
Niemotko v. Maryland
In Niemotko v. Maryland, the Court reversed the conviction of several Jehovah’s Witnesses. The group requested a permit from the city to hold Bible study in the park, but the city denied the request. Still, the group gathered in the park for Bible study, and they were arrested for disorderly conduct.
The Court determined there was no law in place governing the issuance of permits. City officials could issue or deny permits based on their own views. The Court found no basis for denying the Bible study group’s permit except “dislike for or disagreement with the Witnesses or their views.”
Thus, the Court held the convictions violated the Jehovah’s Witnesses’ First Amendment rights to free speech and religion.
International Brotherhood of Teamsters v. Vogt
In 1957, the Court decided International Bhd. of Teamsters v. Vogt, where the Court broadened permissions for government restrictions on picketing. It declared it constitutional for the state to enjoin peaceful picketing aimed at preventing enforcement or implementation of some public policy.
However, some years later, the Court clarified that broad prohibition on peaceful picketing may conflict with First Amendment rights.
Edwards v. South Carolina
In 1963, the Edwards v. South Carolina Court overturned a breach of peace conviction for protesters arrested on a public sidewalk. The African-American protesters were marching near the state house. They were peacefully expressing their dissatisfaction with discrimination. The police ordered them to disperse. They refused. The police arrested them.
The Court found the convictions to be unconstitutional. Essentially, the protesters were arrested for peacefully expressing unpopular views. The Court explained that the protestors were exercising “basic constitutional rights in their most pristine and classic form.”
Thus, the Court determined the convictions violated the protestors’ First Amendment rights of free speech, free assembly, and freedom to petition to redress their grievances.
In 1969, the Court began to develop standards that seemingly provide more protection for expressive activity.
Shuttlesworth v. Birmingham
The Shuttlesworth v. Birmingham Court addressed a matter that originated with the civil rights movement. In Shuttlesworth, the Court reviewed a local ordinance that banned public demonstrations without a permit. This included parades and processions.
Local government officials were granted broad discretion in issuing permits. Commissioner Bull Connor denied Shuttlesworth a permit for a civil rights march protesting segregation.
Connor said, “I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.”
Shuttlesworth still held the march. He was arrested and convicted. He challenged his conviction on First Amendment grounds. The Supreme Court ultimately heard the case.
The Court determined the ordinance operated as a prior restraint on Shuttleworth’s speech. And its enforcement was racially discriminatory.
The Court recognized that time, place, and manner restrictions on speech are permissible. But they may not be administered in a discriminatory manner.
Municipalities may also require permits before events. After all, such restrictions help municipalities maintain public safety and order and manage the many uses of a public roadway.
However, Connor gave Shuttlesworth no indication he could obtain a permit for his march at any time or place. Here, the denial of Shuttleworth’s permit was an unconstitutional suppression of speech.
Ward v. Rock Against Racism
The Court addressed Ward v. Rock Against Racism in 1989. In Ward, the Court provided more guidance for time, place, and manner restrictions. It held that such restrictions don’t violate the First Amendment if they’re:
- Content-neutral
- Narrowly tailored to advance a significant government interest
- Leave available alternative mean of communication
If you are considering participating in a protest or attending one as an observer, it’s important to know your rights. On one hand, protesting illustrates some of the most protected First Amendment activity. On the other hand, state officials must still be able to maintain public order and safety. The development of Supreme Court caselaw weighing these interests provides us with some invaluable insight.
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