Don’t let Trump scare you away from protesting

No one can take away your First Amendment rights.

Do not be intimidated by what happened in Los Angeles during anti-ICE protests.

The Trump administration’s efforts to scare protesters back into their homes should not keep you from participating in marches and rallies in your own town or city. The First Amendment right to protest is sacrosanct. Not even a president who considers himself a king can mess with your constitutional rights in that way.

Image from a Seattle protest (photo by Donna Blankinship)

But it is prudent to know your rights in more detail before you head out to the next public demonstration. Even the right to protest has limits.

You have a right to express yourself in any public space and say whatever you want, as long as you are not inciting people to violence and even that might be open to interpretation based on how the Jan. 6 attack on the U.S. Capitol was handled by the government.

You do not need a permit to hold a protest, wave signs and chant, as long as you do not block access to buildings, cars or pedestrian traffic. With a permit, you could gain permission to march down streets and sidewalks. Your city can’t deny you a permit because government officials don’t agree with your point of view or think the march or rally will be too controversial.

The rules are very different on private property so make sure you consult this ACLU site before taking your demonstration out of the public square.

You can expect local police to be present at any large public gathering. They are there to “keep the peace” and stop people who are breaking the law. I wrote more about staying safe while protesting in this post on legal rights for protesters.

Stay safe: Legal rights for protesters

Some examples of what is and isn’t allowed (at least in my city and state):

– Legal: burning flags.

– Illegal: burning private property or breaking windows.

– Legal: Saying absolutely anything you wish on signs and while chanting, up to and including: “death to the president.”

– Illegal: Physically attacking counter-protestors, who have an equal right to protest.

– Legal: Staying hydrated by drinking water and then dumping the plastic bottles on the ground. OK, not exactly legal to litter and also unkind so please don’t.

– Illegal: Public drinking of alcohol or public smoking of marijuana.

– Legal: Yelling, drumming, shouting, speaking through a megaphone or using a microphone and speaker system, as long as you have a permit for amplified sound.

– Illegal: Throwing things at other protestors or the police. Physically attacking the police in another way. Turning a protest into a riot.

– Legal: Taking photographs, filming video or recording sound in any public space of anyone of any thing you wish to record, including the police or people wearing masks.

– Illegal: Doing the same recording on private property unless you’re there as part of a permitted public protest and the hosts do not explicitly forbid you from taking pictures or video.

– Legal: Protesters wearing masks.

– Frowned upon but not illegal: Law enforcement covering their faces.

But none of these things are grounds for the president of the United States to order troops or the National Guard to control your protest, unless the governor of your state begs for the federal government’s help to stop a riot. The president said he spoke to Gov. Newsom before sending troops to LA. Newsom said that was a lie.

Is it legal to call in the troops?

There are some reasons the president can “federalize” a state National Guard to do police duty on American soil. I am not a lawyer but here’s Title 10, Section 12406, of the U.S. Code:

“Whenever--

(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States;

the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.”

I can think of only one recent moment in U.S. history where this action was required (Jan. 6, 2021) but the president did not call out the National Guard to put down the attack on the U.S. Capitol.

Another approach the president can use is invoking the Insurrection Act of 1807, which says the president can deploy the U.S. military or federalize the National Guard to suppress civil disorder, insurrection or armed rebellion against the federal government. The act has been employed 30 times since the nation was founded.

The most recent use of the Insurrection Act was to respond to the 1992 L.A. riots after the policeman who beat Rodney King was acquitted.

Those are the rules. But we all know that politicians, including our current president, are not good at following rules. That is why California Gov. Newsom has filed a lawsuit challenging the Trump administration’s deployment of the National Guard and other military to Los Angeles.

Why you should protest

The First Amendment is the first amendment for an important reason: It enshrines some of our most treasured rights as Americans and most of those rights provide a powerful check on our government. The founders spent a lot of time debating and crafting the Constitution and the Bill of Rights because they wanted to make sure the United States was very different from the countries they left to come to the North American continent.

Constitutional Law for beginners

Few things stand between us and tyranny. One is the separation of powers, giving Congress, the courts and the president the power to check each other. Next is voting where we choose the people who represent us in Congress, in our state Legislature, for local government and in the White House. Third is our history and laws, which established and solidified other rights and responsibilities. Then there’s protest, free speech and the press – The First Amendment – for when the other pillars require an extra boost to be effective.

Democracy is a participatory sport. In my opinion, all Americans are expected to:

– Vote in local, state and federal elections.

– Be willing to serve in the military when our country is at war.

– Speak up when we think our lawmakers and other government officials need more guidance on how to represent us.

– Peacefully protest in whatever way you are capable – in person, in the streets when you can.

– Pay taxes on your income.

Do not sit home when our democracy needs you. Every vote counts and so does every protester.