Protest Primer

  • Edited by Samantha Grant, Intern, First Amendment Center
  • Written by Lata Nott, Executive Director, First Amendment Center
  • Video production by Jenica Krall, Patrick Kavanaugh, and Megan O’Keefe, School of Communication, American University
  • Special thanks to Professor Jeremiah Patterson, School of Communication, American University
The First Amendment protects the right of the people to peacefully assemble.  Freedom of assembly has protected individuals with all sorts of political viewpoints as they’ve taken to the streets in protest or in support of their causes.

  • To voice their opinion on a law or policy
  • To show their support for a candidate or policy
  • To raise awareness for a cause
  • To express their disapproval
Watch people explain in their own words why they’ve chosen to exercise their freedom of assembly–whether they’re protesting the repeal of Obamacare, rallying for President Trump, or showing their support for Palestine.


The First Amendment protects peaceful, not violent, assembly.  The government can break up a protest if there is “clear and present danger”–meaning that violence is imminent.  The government cannot arrest protesters just for disturbing the peace.
During the civil rights movement, 187 African-American students marched to the South Carolina statehouse grounds carrying signs with messages such as “Down With Segregation.”

 

Although the demonstrators were peaceful and no violence erupted from onlookers, the marchers were all convicted of breaching the peace.

 

However, the Supreme Court reversed the convictions in its 1963 decision Edwards v. South Carolina, finding that the government cannot criminalize “the peaceful expression of unpopular views.”

Government officials can place limits on the time, place, and manner in which people can assemble, as long as there’s a reason for these limits and the limits apply to all protesters, regardless of what they’re protesting. 
 Examples:
  • Requiring protesters to obtain permits in advance, in order to prevent traffic congestion.
  • Requiring that protests take place during daylight hours, for safety reasons.
  • Requiring funeral protests to take place an hour before and an hour after funerals, to minimize the pain caused to grieving families.

The government can’t put restrictions on assembly just because it dislikes the viewpoint of the protesters, or the content of their message
Example: Snyder v. Phelps

In the late 2000s, the Westboro Baptist Church became infamous for protesting the funerals of American solders killed in Iraq, claiming that God was punishing America for its support of gay rights.

 

In 2006, the family of slain soldier Matthew Snyder sued the Westboro Baptist Church and several of its members for protesting at Matthew’s funeral, displaying signs that said, “Thank God for dead soldiers” and “Fag troops.”  A judge awarded the family $5 million in damages for intentional infliction of emotional distress–but the Supreme Court found that this judgment violated the First Amendment, because it involved the government inflicting a penalty on a protest, based on the viewpoint of the protesters.

 

Chief Justice Roberts emphasized that the Westboro protesters had complied with lawful police orders by maintaining a certain distance from the funeral; spoke about public issues; and conducted their protests on public streets.

“The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood holding signs that said ‘God Bless America’ and ‘God Loves You,’ would not have been subjected to liability.”

– Chief Justice John Roberts

A law that punishes protesters because of the messages on their signs is unconstitutional, no matter how horrible those signs messages might be.


In the past year, a wave of protests have been organized to oppose President Trump and his Administration’s policies.  This has led to some pushback from state lawmakers. State lawmakers have proposed laws that would make it harder to protest, create harsher penalties for protesters who are arrested, and remove liability from drivers who accidentally hit protesters with their cars. Click through the slideshow to see what anti-protest bills have been proposed in different states–and which bills have passed and become laws in the past year. For more information, see the U.S. Protest Law Tracker from the International Center for Not-for-Profit Law.