Stay safe: Legal rights for protesters

How to avoid being arrested, what to do and say if you are, and a note about protesting while Black, Brown or Queer.

The First Amendment guarantees your right to protest. But it’s not an unlimited protection for free speech and peaceful assembly. You should pack some legal knowledge in your bag as you head out to that rally or march.

The ACLU in Washington state offers this “Know Your Rights Guide: Protests.” The ACLU in your state probably has something similar. Most of these guidelines are true for everywhere in the United States. But you know your own state better than I do.

A summary of protest rights:

Your right to peacefully protest does not include vandalism of private property. Or breaking other laws. In Washington that would include public drinking or pot smoking. Everywhere that includes assaulting other protesters or the police. If you are an anarchist, you do you. For the rest of you, don’t get carried away in the moment or you might get carted off to jail.

Photo by Clay Banks on Unsplash

Government officials can restrict when and where you protest but not what you are protesting about. So they could shut down a noisy gathering at 2 a.m. or force you to move off the freeway or try to get you to stop blocking entrances to places like military bases or hospitals.

Your city may require you to get a permit for your protest if you plan to march in the streets or block traffic, but standing on a street corner or overpass waving signs doesn’t seem to be a problem. The ACLU says you may be charged a fee for the permit and the government could even ask you to buy insurance, but this varies.

Stick to public property because the First Amendment right to protest does not usually extend to private property. You can be arrested for trespassing in that situation.

What can you say or do while protesting? There aren’t a lot of limits, however the courts have punished people for making threats or inciting violence during protests. This applies to true threats against people or incitement to riot or violence. It doesn’t apply to “political hyperbole,” such as saying you want to kill the president. If others respond violently to your speech, you probably won’t be arrested. And you can burn the flag, if you want to. That makes me sad, but you can do it.

You can be rude, disrespectful, etc. All of this discourteous speech is protected by the First Amendment, even if it is directed at real people or the police.

You can videotape and photograph the police or anything else in a public space. Police would need a warrant to confiscate your camera or demand to see your photographs. But they can ask you to stop doing something because it is truly interfering with legitimate law enforcement operations.

Police can shut down a demonstration that they believe is turning into a riot, or interfering with traffic or a threat to public safety. If you do not obey a police order to disperse, you could be arrested.

What if you’re arrested

You could be arrested even if you feel you are following the rules and that the police officer is wrong to arrest you. I have journalist friends who were arrested during the WTO protests in Seattle when they were just out there doing their jobs.

The ACLU offers this list for what to do if you are stopped by police while protesting. For more details, consult the ACLU-WA’s “What To Do If You’re Stopped by the Police.”

– Stay calm, keep your hands visible, don’t argue or resist even if you believe the police are violating your rights.

– Don’t run or physically resist arrest.

– Ask if you are free to leave. If the officer says yes, then walk away.

– If you are under arrest, you have a right to ask why. Other than that, just remain silent and ask for a lawyer. Don’t sign anything without a lawyer.

– You have a right to make a phone call and police are not allowed to listen to you talk to your lawyer.

– You are not required to consent to a search of yourself or your belongings. Police may “pat down” your clothing if they suspect you have a weapon. (my note: Do not bring weapons to protests.)

– Police may not confiscate or demand to view your photos or video without a warrant.

– Write down everything you remember, including the officers’ badge and patrol car numbers and the agency they work for.

– Get contact information for witnesses.

– Take photos of any injuries.

A note (from a mom who cares) about protesting while Black, Brown or Queer

You know your city and state. You know if you are more likely to be targeted by police or even other protesters. It’s not always safe to express your First Amendment rights. Know when to stay home and when to venture out. And just because your white, cisgender friend jumps off a bridge or breaks the window at a Tesla dealership, doesn’t mean you should follow them or be present when the police arrive.

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