Freedom of Assembly: When Does A Protest Become A Criminal Act?

Millions of citizens are exercising their right to social and political protest. But many citizens are also being arrested when they exercise this right, which gives rise to several questions:

Freedom of Assembly When Does A Protest Become A Criminal Act

What are your rights during a protest? When does a protest become a criminal action? How are lawmakers attempting to deal with this persistent problem of peaceful protest that is taking over many American cities?

Your Rights During a Protest

The First Amendment to the U.S. Constitution states that, “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.”

For many Americans, the right to protest laws, institutions, and actions that they find objectionable is a foundational right granted by the highest law in the land. But many protestors are still unaware of their rights.

Per the American Civil Liberties Union (ACLU) website, peaceful protestors have the right to:

  • Protest in a public forum such as a street, sidewalk, and park

  • Protest on private property (with consent of the owner)

  • Distribute protest material, such as pamphlets, on public sidewalks without obtaining a permit, as long as you don’t block public entrances or detain pedestrians

  • Take pictures and videotape protest activities as long as you are “lawfully present in a public space,” or you have the owner’s permission if you are on private property

The Definition of Unlawful Assembly

 In some instances, protestors may be in violation of the law if they fail to take the right measures.

“Unlawful assembly” is defined as a meeting of three or more people who gather together for an illegal purpose, or to intentionally breach the public peace.

But you can also be charged with unlawful assembly if you take part in a peaceful protest that turns violent or disorderly.

More importantly, the First Amendment does not give a blanket right for you to stage a protest whenever you want. The government has the power to control the “time, place and manner” of a protest, which means that it can apply restrictions to protests.

The government can restrict protests based on factors such as excessive noise, blocking the ordinary use of a location, blocking traffic and the potential for destruction of property.

In fact, “disorderly conduct” has become a kind of catchall charge police officers levy against protestors to prevent their protests.

Although every state has its own specific definition of the charge, disorderly conduct typically refers to actions, threats or words that breach the peace or cause others to feel unsafe.

And in fact, a New York Times opinion piece highlighted the ways in which lawmakers in the U.S. are pushing measures designed to criminalize peaceful protests.

In North Dakota, for example, a state measure would criminalize the act of wearing a mask during a protest. And in North Carolina, a lawmaker introduced a bill that would criminalize heckling an elected official.

“ In my dozen years of monitoring state legislation, I’ve certainly not seen a wave of anti-protest bills this large,” stated Lee Rowland, an ACLU attorney specializing in free speech.

Fighting For Your Rights

If you have been arrested after taking part in a peaceful protest and you believe you have a claim, please call the McDaniel Law Group, PLLC at 202-331-0793. We have an outstanding and experienced group of lawyers ready to provide you with expert counsel.