Protesters’ Rights
Youth who wish to participate in protest activities should be aware of their rights and responsibilities when engaging in civil disobedience.
Various provisions of the First Amendment of the U.S. Constitution protect our freedom of speech, our right to assembly peaceably, and our right to petition government for change.
The First Amendment also protects our right to join others to collectively share a message or protest. The First Amendment, however, does not protect a few narrow categories of expression. The First Amendment does not protect "incitement," which means speech intended and likely to cause imminent law-breaking. For example, the First Amendment does not protect a speaker who urges an angry crowd to immediately attack someone or destroy their property. The First Amendment does not protect "true threats" directed against a particular person who would reasonably perceive in their message a danger of violence.
Attending a protest
Your rights
- Your rights are strongest in what are known as “traditional public forums,” such as streets, sidewalks, and parks. You also likely have the right to speak out on other public property, like plazas in front of government buildings, as long as you are not blocking access to the government building or interfering with other purposes the property was designed for.
- Private property owners can set rules for speech on their property. The government may not restrict your speech if it is taking place on your own property or with the consent of the property owner.
- Counterprotesters also have free speech rights. Police must treat protesters and counterprotesters equally. Police are permitted to keep antagonistic groups separated but should allow them to be within sight and sound of one another.
- When you are lawfully present in any public space, you have the right to photograph anything in plain view, including federal buildings and the police. On private property, the owner may set rules related to photography or video.
- You don’t need a permit to march in the streets or on sidewalks, as long as marchers don’t obstruct car or pedestrian traffic. If you don’t have a permit, police officers can ask you to move to the side of a street or sidewalk to let others pass or for safety reasons.
- If students leave school grounds during the school day to participate in a non-school sponsored protest, demonstration, or walkout, they will not be under school or MMSD staff supervision. Schools also follow standard attendance policies, and students who are not in class will be marked absent or not excused; parents/guardians can excuse students by calling the attendance office for a pre-planned absence or make an online request.
Taking pictures or shooting video at a protest
Your rights
- When you are lawfully present in any public space, you have the right to photograph anything in plain view, including federal buildings and the police. (On private property, the owner may set rules about photography or video.)
- Police officers may not confiscate or demand to view your photographs or video without a warrant, nor may they delete data under any circumstances. However, they may order citizens to cease activities that are truly interfering with legitimate law enforcement operations.
- If you are videotaping, be aware that there is an important legal distinction between a visual photographic record (fully protected) and the audio portion of a videotape, which some states have tried to regulate under state wiretapping laws.
Being stopped by the police while protesting
Your rights
- Stay calm. Make sure to keep your hands visible. Don’t argue, resist, or obstruct the police, even if you believe they are violating your rights. Point out that you are not disrupting anyone else’s activity and that the First Amendment protects your actions.
- Ask if you are free to leave. If the officer says yes, calmly walk away.
- If you are under arrest, you have a right to ask why. Otherwise, say you wish to remain silent and ask for a lawyer immediately. Don’t say anything or sign anything without a lawyer.
- You have the right to make a local phone call, and if you’re calling your lawyer, police are not allowed to listen.
- You never have to consent to a search of yourself or your belongings. If you do explicitly consent, it can affect you later in court.
- Police may “pat down” your clothing if they suspect you have a weapon and may search you after an arrest.
- Police officers may not confiscate or demand to view your photographs or video without a warrant, nor may they delete data under any circumstances. However, they may order citizens to cease activities that are truly interfering with legitimate law enforcement operations.
If police arrest you:
- Do not resist arrest, even if you believe the arrest is unfair.
- Say you wish to remain silent and ask for a lawyer immediately.
- You have the right to make a local phone call.
- If you have photo identification with you during an arrest, police can more quickly confirm your identify, and may more quickly
- release you.
- If you were arrested for a fine-only offense or for a misdemeanor, you usually will be eligible for prompt release from the police
- station after you complete the booking process.
- If you are not a US citizen, ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Don't discuss your immigration status with anyone but your lawyer.
Be aware that an arrest, even if you are not convicted, may have negative effects:
- Arrest records may be maintained in an individual’s comprehensive criminal record.
- An arrest may result in fingerprinting and/or DNA collection, which may maintained in law enforcement databases.
- Arrest records may be publically available through websites such as Wisconsin Circuit Court Access.
Additional Resources
The First Amendment protects your right to assemble and express your views through protest. However, police and other government officials are allowed to place certain narrow restrictions on the exercise of speech rights. Make sure you’re prepared by brushing up on your rights before heading out into the streets.