Justice360 – Legal Bulletin: The First Amendment- Limitations & Protections

Introduction

The First Amendment to the United States Constitution reads, “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.”

The First Amendment establishes the premise that an individual’s right to freedom of speech, the freedom of the press and the rights of assembly and petitioning cannot be restricted on the basis of their content. If only the conversation could end here; unfortunately, this does not afford activists blanket protections against government regulation. The government has the discretion to place restrictions upon the exercise of First Amendment rights as long as the restrictions serve a “compelling state interest,” are “non-discriminatory and narrowly drawn” and specific to the “time, place and manner.”

Not only does the government have this discretion, but its use has created a chilling effect, instilling fear of engaging in political free speech activities. The fear is that law enforcement will repress demonstrations or that the law will make criminal, speech and assembly activities otherwise protected. Naturally, this leads to a decline in activist participation in protected activities and has had a profound effect on communities frequently targeted by law enforcement (especially Muslim/Arab/South-Asian communities), many of whom, although wanting to publicly exercise their First Amendment, may decide that it is not worth the risk of encountering police violence, possible arrest and the endless coercive methods that law enforcement employs.

Much backlash is felt by activists who manifest their community organizing efforts into coordinated public marches/protests/demonstrations/rallies. If we understand our rights when engaging in political activity, we can protect ourselves as we take a stand and exercise our social and political rights.

Protected & Unprotected Activities

The First Amendment exists within certain perimeters. Some activities are protected and some are not. Generally, protected activities include the use of all forms of communication one may use while engaging in political activity such as, blogging, writing, marching, music, film, theatre and dance. Furthermore, actions which are symbolic representations of a specific view point are also protected, such as clothing, signs, vigils, etc. However, the government may place restrictions on or prohibit activities which involve illegal conduct, and such actions may lead to arrest or conviction. For example, although sitting in a road may be expressing a political opinion, the act of blocking traffic may lead to criminal punishment.

First Amendment protections differ in respect to whether the activity is taking place in a public forum versus a private forum. As a general rule, all types of expression are constitutionally protected in public forums, namely streets, sidewalks and parks. One may distribute pamphlets, handbills, petitions, solicitations for donations, newspapers and even table on public sidewalks without requiring a permit so long as there is sufficient space for pedestrians to pass, entrances to buildings are not blocked, and people are not “physically and maliciously detained.” Picketing is also permitted on public sidewalks so long as it is done in an orderly, non-disruptive manner and the same criteria as mentioned above are met. An important fact to remember is that although groups are entitled to use signs, they are not permitted to affix them onto public property.

The government may also open up other locations [such as plazas in front of government buildings] allowing for political activity; however, it may impose a permit requirement in order to access these locations. In regards to private space, the general rule is that free speech activity cannot take place on private property without the consent of the property owner and any right to remain on private property is vitiated when told to leave by the property owner. A permit is required for any march/parade that will not stay on the sidewalk and other events that require blocking traffic or any street closure; a large rally requiring the use of sound amplifying devices; or a rally at certain designated parks or plazas [e.g. New York City parks, City Hall steps or the plaza in front of those steps, etc.].

There are some explicit parameters to the protections afforded under the First Amendment. The First Amendment does not protect speech that is accompanied by the violation of established laws such as trespassing and disobeying a lawful order by a police officer. Although an inflammatory speaker cannot be punished for simply exciting an audience, a speaker can be arrested for “incitement” if imminent violence is being advocated or if the speaker specifically provokes people to commit unlawful actions. Malicious statements towards public officials and obscene speech are not protected speech in the context of public protests/demonstrations. Civil disobedience which is peaceful, but unlawful, is not a form of protest protected under the First Amendment. Demonstrators, who endanger others while protesting, can face arrest. The same consequence stands for those who block traffic – both vehicular and pedestrian – without a permit, and those who block building entrances and/or physically harass those who pass by.

Police Encounters

Political activities face a chilling effect when the government and law enforcement interfere with the exercise of First Amendment rights. For example, law enforcement falsely labels protest rhetoric and political hyperbole as “true threats” in order to justify aggressive policing and prosecution; use grand juries to harass political activists by imprisoning them without specific criminal charges for non-cooperation with government investigations; prosecute leaders and activist supporters; stigmatize activists as “domestic terrorists”; prohibit the photographing of law enforcement; takes preemptive measures in the absence of illegal activity; carry out repression based on fabricated evidence; initiate violence and abusive use of less-lethal munitions against civilians; and promote negative media coverage.

These practices have increased since the enactment of the Department of Justice’s domestic terrorism laws following the attacks on September 11, 2001. These laws, and especially the USA PATRIOT Act, have given a green light to the FBI and other law enforcement agencies to infiltrate and spy upon political groups. Groups who criticize the government and/or maintain ties with international movements now find themselves under investigation for domestic terrorism. The term “terrorism” is defined so broadly in the Act that traditional forms of political protest face a “chilling effect.” The change in atmosphere has created a scenario where law enforcement is ill-trained in the parameters of First Amendment rights; thus, meeting protesters with excessive force and illegal practices.

Conclusion

The First Amendment lays out the rights enjoyed by people under the United States Constitution. However, it is important to understand the perimeters of those rights and the limitations that exist therein. In understanding one’s rights while engaging in political activity, more specifically in the form of public protest/demonstrations, one can help safeguard not only him/herself, but an entire community fighting back against the “chilling effect” of both government and law enforcement intrusions upon the exercise of the freedom of speech and assembly. Check your local police department or government website for permit information and in case of any law enforcement pressures, remember your right to remain silent and to contact an attorney.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

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