![\"Right](\"http:\/\/gadflyonline.com\/home\/wp-content\/uploads\/2017\/08\/Right-to-Protest.png\")
<\/a><\/p>\n\n\u201cIf there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought \u2014 not free thought for those who agree with us but\u00a0freedom for the thought that we hate<\/a>.\u201d\u2014 Supreme Court Justice Oliver Wendell Holmes<\/p>\n<\/blockquote>\n
There was a time in this country, back when the British were running things, that if you spoke your mind and it ticked off the wrong people, you\u2019d soon find yourself in jail for offending the king.<\/p>\n
Reacting to this injustice, when it was time to write the Constitution, America\u2019s founders argued for a Bill of Rights, of which the First Amendment protects the right to free speech. James Madison, the father of the Constitution, was very clear about the fact that he wrote the First Amendment\u00a0to protect the minority against the majority<\/a>.<\/p>\n
What Madison meant by minority is \u201coffensive speech.\u201d<\/p>\n
Unfortunately, we don\u2019t honor that principle as much as we should today. In fact, we seem to be witnessing a politically correct philosophy at play, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn\u2019t fit within their parameters of what they consider to be \u201cacceptable\u201d speech.<\/p>\n
There are\u00a0all kinds of labels put on such speech<\/a>\u2014it\u2019s been called politically incorrect speech, hate speech, offensive speech, and so on\u2014but really, the message being conveyed is that you don\u2019t have a right to express yourself if certain people or groups don\u2019t like or agree with what you are saying.<\/p>\n
Hence, we have seen the caging of free speech in recent years, through the use of so-called \u201cfree speech zones\u201d on college campuses and at political events, the requirement of speech permits in parks and community gatherings, and the policing of online forums.<\/p>\n
Clearly, this elitist, monolithic mindset is at odds with everything America is supposed to stand for.<\/p>\n
Indeed, we should be encouraging people to debate issues and air their views. Instead, by muzzling free speech, we are contributing to a growing underclass of Americans\u2014many of whom have been labeled racists, rednecks and religious bigots\u2014who are being told that they can\u2019t take part in American public life unless they \u201cfit in.\u201d<\/p>\n
Remember, the First Amendment acts as a steam valve. It allows people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world. When there is no steam valve to release the pressure, frustration builds, anger grows and people become more volatile and desperate to force a conversation.<\/p>\n
The attempt to stifle certain forms of speech is where we go wrong.<\/p>\n
In fact, the U.S. Supreme Court has held that it is \u201ca bedrock principle underlying the First Amendment…that the government may not prohibit the expression of an idea simply because society finds the idea offensive<\/a>\u00a0or disagreeable.\u201d For example, it is not a question of whether the Confederate flag represents racism but whether banning it leads to even greater problems, namely, the loss of freedom in general.<\/p>\n
Along with the constitutional right to peacefully (and that means non-violently) assemble, the right to free speech allows us to challenge the government through protests and demonstrations and to attempt to change the world around us\u2014for the better or the worse\u2014through protests and counterprotests.<\/p>\n
As always, knowledge is key.<\/p>\n
The following Constitutional Q&A, available in more detail at The Rutherford Institute (www.rutherford.org<\/a><\/strong><\/u>), is a good starting point.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 WHAT LAWS GIVE ME THE RIGHT TO PROTEST?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The First Amendment prohibits the government from \u201cabridging 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<\/a>.\u201d Protesting is an\u00a0exercise of these constitutional rights<\/a>\u00a0because it involves speaking out, by individual people or those assembled in groups, about matters of public interest and concern.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 WHERE CAN I ENGAGE IN PROTEST ACTIVITY?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The right to protest generally extends to places that are owned and controlled by the government, although not all government-owned property is available for exercising speech and assembly rights. However, beyond public or government property, a person cannot claim a First Amendment right to protest and demonstrate on property that is privately owned by someone else. This also applies to private property that is generally open to the public, such as a\u00a0shopping mall or shopping center<\/a>, although these areas sometimes allow demonstrations and other free speech activity with permission from the owner. You are also entitled to engage in protest activities on land you own.\u00a0 The Supreme Court has ruled that the\u00a0government may not forbid homeowners from posting signs on their property speaking out on a political or social issue<\/a>.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 WHAT ARE MY RIGHTS TO PROTEST IN A TRADITIONAL PUBLIC FORUM?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Places historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are traditional public forums and the government\u2019s power to limit speech and assembly in those places is very limited. The government may not impose an absolute ban on expression and assembly in traditional public forums except in circumstances where it is essential to serve a compelling government interest.\u00a0 However, expression and assembly in traditional public forums may be limited by\u00a0reasonable time, place and manner regulations<\/a>. Examples of reasonable regulations include\u00a0restrictions on the volume of sound produced by the activity<\/a>\u00a0or a\u00a0prohibition on impeding vehicle and pedestrian traffic<\/a>.\u00a0 To be a valid time, place and manner regulation, the restriction must not have the effect of restricting speech based on its content and it\u00a0must not be broader than needed<\/a>\u00a0to serve the interest of the government.<\/p>\n
Q: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CAN I PICKET AND\/OR DISTRIBUTE LEAFLETS AND OTHER TYPES OF LITERATURE ON PUBLIC SIDEWALKS?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes, a\u00a0sidewalk is considered a traditional public forum<\/a>\u00a0where you can engage in expressive activities, such a passing out literature or speaking out on a matter of public concern. In exercising that right, you must not block pedestrians or the entrances to buildings. You may not physically or maliciously detain someone in order to give them a leaflet, but you may approach them and offer it to them.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CAN MY FREE SPEECH BE RESTRICTED BECAUSE OF WHAT I SAY, EVEN IF IT IS CONTROVERSIAL?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 No, the First Amendment protects speech\u00a0even if most people would find it offensive, hurtful or hateful<\/a>. Speech generally cannot be banned based upon its content or viewpoint because it is not up to the government to determine what can and cannot be said. A bedrock principle of the First Amendment is that the\u00a0government may not prohibit expression of an idea because society finds it offensive or disagreeable<\/a>. Also, protest speech also cannot be banned because of a fear that others may react violently to the speech.\u00a0 Demonstrators cannot be punished or forbidden from speaking because they might offend a hostile mob. The Supreme Court has held that a \u201checkler\u2019s veto\u201d has\u00a0no place in First Amendment law<\/a>.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 HOW DO THESE RIGHTS APPLY TO PUBLIC PLACES I TYPICALLY VISIT?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Your rights to speak out and protest in particular public places will depend on the use and purpose of the place involved.\u00a0 For example, the lobbies and offices of public buildings that are used by the government are generally not open for expressive activities because the purpose of these buildings is to carry out public business.\u00a0Protesting would interfere with that purpose<\/a>.\u00a0 Ironically, the meetings of a governmental body, such as a city council or town board, are not considered public forums open for protest activities because the purpose of the meeting is generally to address public business that is on the agenda.\u00a0 However, some government councils and boards set aside a time at the meeting when the\u00a0public can voice their complaints<\/a>.<\/p>\n
The grounds of public colleges and universities are generally considered available for assembly and protest by students and other members of the institution\u2019s community.\u00a0 However, those who are not students, faculty or staff of the institution\u00a0may be denied access to the campus<\/a>\u00a0for speech and protest activities under rules issued by the school.<\/p>\n
Public elementary and secondary school grounds also are not considered places where persons can engage in assembly and protest.\u00a0 However, students at these schools do not lose their right to free speech when they enter the school. The First Amendment protects the right of students to engage in expressive acts of protest,\u00a0such as wearing armbands<\/a>\u00a0to demonstrate opposition to a war, that are not disruptive to the school environment.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 DO I NEED A PERMIT IN ORDER TO CONDUCT A PROTEST?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As a general rule, no. A person is not required to obtain the consent or permission of the government before engaging in activities that are protected by the First Amendment.\u00a0 One of the main reasons for that constitutional provision was to forbid any requirement that citizens obtain a license in order to speak out.\u00a0 The\u00a0government cannot require that individuals or small groups obtain a permit<\/a>\u00a0in order to speak or protest in a public forum.<\/p>\n
However, if persons or organizations want to hold larger rallies and demonstrations, they may be required by local laws to obtain a permit.\u00a0 The Supreme Court has recognized that the government,\u00a0in order to regulate competing uses of public forums<\/a>, may impose a permit requirement on those wishing to hold a parade or rally.\u00a0 Government officials cannot simply\u00a0prohibit a public assembly according to their discretion<\/a>, but the government can impose\u00a0restrictions on the time, place, and manner of peaceful assembly<\/a>, provided that constitutional safeguards are met. Such\u00a0time, place and manner restrictions<\/a>\u00a0can take the form of requirements to obtain a permit for an assembly.<\/p>\n
Whether an assembly or demonstration requires a permit depends on the laws of the locality.\u00a0 A permit certainly is required for any parade because it would involve the use of the streets and interfere with vehicle traffic. A permit to hold an event in other public places typically is required if the gathering\u00a0involves more than 50 persons or the use of amplification<\/a>.<\/p>\n
Q: \u00a0 \u00a0 \u00a0 \u00a0DO COUNTER-DEMONSTRATORS HAVE FREE SPEECH RIGHTS?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Yes, they do. Just because counter-demonstrators oppose you and the viewpoint of your demonstration does not mean they have any less right to speak out and demonstrate. However, the same rules apply to counter-demonstrators as apply to the original assembly. The group cannot be violent and must assemble and protest in an appropriate place and manner.<\/p>\n
Q: \u00a0 \u00a0 \u00a0 \u00a0WHAT\u00a0CAN’T<\/u>\u00a0I DO IN EXERCISING MY RIGHTS TO PROTEST?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Supreme Court of the United States has held that the First Amendment protects the right to conduct a\u00a0peaceful public assembly<\/a>. The First Amendment does not provide the right to conduct a gathering at which there is a\u00a0clear and present danger of riot, disorder, interference with traffic<\/a>\u00a0on public streets or other immediate threat to public safety. Laws that prohibit people from assembling and using force or violence to accomplish unlawful purposes are\u00a0permissible<\/a>\u00a0under the First Amendment.<\/p>\n
Q: \u00a0 \u00a0 \u00a0 AM I ALLOWED TO CARRY A WEAPON OR FIREARM AT A DEMONSTRATION OR PROTEST?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Your right to have a weapon with you when you protest largely depends on what is allowed by state law and is unlikely to be protected by the First Amendment\u2019s guarantee to freedom of speech.\u00a0Not all conduct can be considered \u201cspeech\u201d protected by the First Amendment<\/a>\u00a0even if the person engaging in the conduct intends to express an idea. Most courts have held that the act of openly carrying a weapon or firearm is\u00a0not expression<\/a>\u00a0protected by the First Amendment.<\/p>\n
The right to possess a firearm is protected by the\u00a0Second Amendment<\/a>, and\u00a0all states allow carrying a concealed weapon in public<\/a>, although most require a permit to do so. Some states allow persons to\u00a0openly carry firearms<\/a>\u00a0in public. However, it is\u00a0not yet settled<\/a>\u00a0whether the Second Amendment guarantees the right to possess a firearm in public. Thus, the right to carry a firearm at a demonstration or protest is a matter that depends on what is allowed under state law. Carrying other weapons, such as stun guns, which are not firearms also is subject to restrictions imposed by\u00a0state law<\/a>.\u00a0Possession of weapons also may be prohibited in certain places<\/a>\u00a0where demonstrations might take place, such as a national park.<\/p>\n
Even if possession of weapons is allowed, their presence at demonstrations and rallies can be intimidating and provocative and does not help in achieving a civil and peaceful discourse on issues of public interest and concern. Demonstrations often relate to issues raising strong feelings among competing groups, and the presence of counter-demonstrators makes conflict likely.\u00a0 In these situations, where the purpose of the gathering is to engage in speech activities, firearms and other weapons are threatening, result in the suppression of speech and are contrary to the purpose of the First Amendment to allow all voices to be heard on matters of public importance.<\/p>\n
Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 WHAT\u00a0CAN\u2019T<\/u>\u00a0THE POLICE DO IN RESPONDING TO PROTESTERS?<\/strong><\/p>\n
A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In recent history, challenges to the right to protest have come in many forms. In some cases, police have cracked down on demonstrations by declaring them \u201cunlawful assemblies\u201d or through mass arrests, illegal use of force or curfews. Elsewhere, expression is limited by corralling protesters into so-called \u201cfree-speech zones<\/a>.\u201d New surveillance technologies are increasingly turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest. Even without active obstruction of the right to protest, police-inspired intimidation and fear can\u00a0chill expressive activity<\/a>\u00a0and result in self-censorship. All of these things violate the First Amendment and are things the police cannot do to censor free speech. Unless the assembly is violent or violence is clearly imminent, the police have limited authority under the law to shut down protesters.<\/p>\n
Clearly, as evidenced by the\u00a0recent tensions in Charlottesville, Va.<\/a>, we\u2019re at a crossroads concerning the constitutional right to free speech.<\/p>\n
As Benjamin Franklin warned, \u201cWhoever would overthrow the liberty of a nation must begin by subduing the freeness of speech<\/a>.\u201d<\/p>\n
It must be emphasized that it was for the sake of preserving individuality and independence that James Madison, the author of the Bill of Rights, fought for a First Amendment that protected the \u201cminority\u201d against the majority, ensuring that even in the face of overwhelming pressure, a minority of one\u2014even one who espouses distasteful viewpoints\u2014would still have the right to speak freely, pray freely, assemble freely, challenge the government freely, and broadcast his views in the press freely.<\/p>\n
This freedom for those in the unpopular minority constitutes the ultimate tolerance in a free society. Conversely, as I make clear in my book\u00a0Battlefield America: The War on the American People<\/em><\/a>,\u00a0<\/em>when we fail to abide by Madison\u2019s dictates about greater tolerance for all viewpoints, no matter how distasteful, the end result is always the same: an indoctrinated, infantilized citizenry that marches in lockstep with the governmental regime.<\/p>\n
Some of this past century\u2019s greatest dystopian literature shows what happens when the populace is transformed into mindless automatons. For instance, in George Orwell\u2019s\u00a01984<\/em>, Big Brother does away with all undesirable and unnecessary words and meanings, even going so far as to routinely rewrite history and punish \u201cthoughtcrimes.\u201d<\/p>\n
Where we stand now is at the juncture of OldSpeak (where words have meanings, and ideas can be dangerous) and Newspeak (where only that which is \u201csafe\u201d and \u201caccepted\u201d by the majority is permitted). The power elite has made their intentions clear: they will pursue and prosecute any and all words, thoughts and expressions that challenge their authority.<\/p>\n
This is the final link in the police state chain.<\/p>\n
If ever there were a time for us to stand up for the right to speak freely, even if it\u2019s freedom for speech we hate, the time is now.<\/p>\n
WC: 2655<\/p>\n
\nABOUT JOHN W. WHITEHEAD<\/h5>\n
Constitutional attorney and author John W. Whitehead is founder and president of\u00a0The Rutherford Institute<\/u><\/a>. His book\u00a0Battlefield America: The War on the American People<\/em><\/a>\u00a0(SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at\u00a0johnw@rutherford.org<\/a>.<\/p>\n
PUBLICATION GUIDELINES \/ REPRINT PERMISSION<\/h5>\n
John W. Whitehead\u2019s weekly commentaries are available for publication to newspapers and web publications at no charge. Please contact\u00a0staff@rutherford.org<\/a>\u00a0to obtain reprint permission.<\/p>\n<\/div>\n
This commentary is available at: http:\/\/rutherford.org\/publications_resources\/john_whiteheads_commentary\/freedom_for_the_speech_we_hate_the_legal_ins_and_outs_of_the_right_to_<\/p>\n
<\/p>\n
<\/p>\n
![\"\"](\"https:\/\/www.rutherford.org\/files_images\/general\/DonateNowPR.jpg\")
<\/a><\/p>\n