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Is It Against The Law To Protest?

by | Jun 3, 2020 | Criminal Defense

This is a complicated question with a lot of possible directions and answers. According to the United States and Ohio Constitutions, the short answer is a resounding “No!” However, there are a lot of “except when…” that must be considered to avoid potential arrests.

What does the First Amendment say about protesting?

The First Amendment to the United States Constitution protects our right to assemble in public and our freedom of speech from Government restrictions. This is the what our entire country’s belief system was built upon: the right to publicly assemble and the right to criticize our government.

Once upon a time in Boston, an unarmed teenager was hit in the head with by a local law enforcement officer during a verbal argument. As word of what happened spread through the streets of Boston, people took to the street to protest the abuse of power and police brutality. A group of Bostonians marched through the streets shouting causing local businesses to close their doors and local authorities to call for back up to quell what they believed was an unlawful riot. When armed authorities arrived and told the protestors to go home, things got heated, angry words were exchanged, and some of officers had dirt thrown at them. In response, “fearing for their lives,” the officers shot at the crowd and killed five protestors and injured three more.

We know these events as the “Boston Massacre,” and those protestors were the first five patriots to die in the American Revolution against the tyranny of the English Crown. Protesting abusive and unjust governmental actors or actions birthed this great nation. It is no surprise then that the first amendment of our newly created Constitution, and the start of our Bill of Rights, was written to protect our rights to openly criticize our government and to gather to spread that message.

First Amendment to the United States Constitution (relevant portion):

“Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the government for a redress of grievances.”

What does the Ohio Constitution say about protesting?

Most states have articles in their constitutions that copy or mimic the Bill of Rights. The Ohio Constitution protects Ohioans’ right to free speech in Article 1, Section 11: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for abuse of the right, and no law shall be passed to restrain or abridge the liberty of speech, or the press.”

In Article 1, Section 3 the Ohio Constitution has a provision to protect our right to assemble: “The people have the right to assemble together, in a peaceable manner, to consult for the common good; to instruct their representatives; and to petition the General Assembly for the redress of grievances.”

Constitutional rights guaranteed under the Ohio Constitution are typically protected and limited in the same way that our rights are treated under the U.S. Constitution.

Are there limits on my Free Speech and Right to Assemble?

In a word: Yes. There are volumes of texts and cases discussing the limitations on our freedom of speech and our right to assemble. But below you will find the basics.

Peaceful Assembly

You will notice that in both the First Amendment to the U.S. Constitution and Article 1, Section 3 of the Ohio Constitution, our right to assemble is limited to “peaceful assembly.” In other words, nonviolent protests are protected; there is not a right to gather to committing crimes. If you are arrested for peacefully protesting, you should seek legal counsel immediately to discuss if your constitutional rights were violated.

Unprotected Speech

There are many categories of unprotected speech, meaning there are some types of speech that the government can legally limit. Criticizing the government or government employees is not one of them. The most relevant types of unprotected speech to avoid while protesting: 1) inciting violence; 2) fighting words; and 3) criminal speech. In other words, you cannot incite or solicit other people to commit crimes.

For example, in Bellecourt v. City of Cleveland, the Ohio Supreme Court found that arrests of protesters for burning an effigy of Chief Wahoo outside the stadium was not a violating of their constitutional rights to free speech and assembly because the protestors threw an accelerant on the burning effigy on a windy day. The protest and burning an effigy of Chief Wahoo were not the problem; they were valid exercises of the right to assemble and free speech. It was the extra step of using of the accelerant and the windy weather that created a threat to public safety and so it was legal to arrest the protestors.

Time, Place, and Manner Restrictions

Another common restriction on your right to assemble and free speech is what are commonly called “time, place, and manner restrictions.” In short, they are limits on when, where, and how you assemble or express your speech. They are not limitations on what you are expressing, and if they are applied to everyone, no matter their viewpoint, equally, then they are legal restrictions. Typically, you will see these restrictions used as limits on the time of day you can protest, where you can protest, and a limit on the types of signs you can use (e.g. no LED lights next to a road to avoid automobile crashes from distracted drivers).

In Hartman v. Thompson, the Sixth Circuit Court of Appeals, found that the protestors’ First Amendment rights were not violated because the protestors were required to stay within a “protest zone.” Arrests by Kentucky State Troopers for people protesting outside of the protest zone were found to be lawful. This case is a classic example of lawful time, place, and manner restrictions.

Protect Your Rights

If you were exercising your fundamental rights and were you arrested, or you want to make sure that your fundamental rights to speak out against the government are protected, please contact experienced Rittgers Rittgers & Nakajima trial attorneys that will defend your rights and your freedom.