Freedom for the Speech We Hate: The Legal Ins and Outs of the Right to Protest

By John W. Whitehead

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”— Supreme Court Justice Oliver Wendell Holmes

August 24, 2017 "Information Clearing House" - 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’d soon find yourself in jail for offending the king.

Reacting to this injustice, when it was time to write the Constitution, America’s 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 to protect the minority against the majority.

What Madison meant by minority is “offensive speech.”

Unfortunately, we don’t 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’t fit within their parameters of what they consider to be “acceptable” speech.

There are all kinds of labels put on such speech—it’s been called politically incorrect speech, hate speech, offensive speech, and so on—but really, the message being conveyed is that you don’t have a right to express yourself if certain people or groups don’t like or agree with what you are saying.

Hence, we have seen the caging of free speech in recent years, through the use of so-called “free speech zones” on college campuses and at political events, the requirement of speech permits in parks and community gatherings, and the policing of online forums.

Clearly, this elitist, monolithic mindset is at odds with everything America is supposed to stand for.

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—many of whom have been labeled racists, rednecks and religious bigots—who are being told that they can’t take part in American public life unless they “fit in.”

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.

The attempt to stifle certain forms of speech is where we go wrong.

In fact, the U.S. Supreme Court has held that it is “a bedrock principle underlying the First Amendment...that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” 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.

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—for the better or the worse—through protests and counterprotests.

As always, knowledge is key.

The following Constitutional Q&A, available in more detail at The Rutherford Institute (www.rutherford.org), is a good starting point.

Q:        WHAT LAWS GIVE ME THE RIGHT TO PROTEST?

A:         The First Amendment prohibits the government from “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.” Protesting is an exercise of these constitutional rights because it involves speaking out, by individual people or those assembled in groups, about matters of public interest and concern.

Q:        WHERE CAN I ENGAGE IN PROTEST ACTIVITY?

A:         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 shopping mall or shopping center, 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.  The Supreme Court has ruled that the government may not forbid homeowners from posting signs on their property speaking out on a political or social issue.

Q:        WHAT ARE MY RIGHTS TO PROTEST IN A TRADITIONAL PUBLIC FORUM?

A:         Places historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are traditional public forums and the government’s 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.  However, expression and assembly in traditional public forums may be limited by reasonable time, place and manner regulations. Examples of reasonable regulations include restrictions on the volume of sound produced by the activity or a prohibition on impeding vehicle and pedestrian traffic.  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 must not be broader than needed to serve the interest of the government.

Q:        CAN I PICKET AND/OR DISTRIBUTE LEAFLETS AND OTHER TYPES OF LITERATURE ON PUBLIC SIDEWALKS?

A:         Yes, a sidewalk is considered a traditional public forum where 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.

Q:        CAN MY FREE SPEECH BE RESTRICTED BECAUSE OF WHAT I SAY, EVEN IF IT IS CONTROVERSIAL?

A:         No, the First Amendment protects speech even if most people would find it offensive, hurtful or hateful. 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 government may not prohibit expression of an idea because society finds it offensive or disagreeable. Also, protest speech also cannot be banned because of a fear that others may react violently to the speech.  Demonstrators cannot be punished or forbidden from speaking because they might offend a hostile mob. The Supreme Court has held that a “heckler’s veto” has no place in First Amendment law.

Q:        HOW DO THESE RIGHTS APPLY TO PUBLIC PLACES I TYPICALLY VISIT?

A:         Your rights to speak out and protest in particular public places will depend on the use and purpose of the place involved.  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. Protesting would interfere with that purpose.  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.  However, some government councils and boards set aside a time at the meeting when the public can voice their complaints.

The grounds of public colleges and universities are generally considered available for assembly and protest by students and other members of the institution’s community.  However, those who are not students, faculty or staff of the institution may be denied access to the campus for speech and protest activities under rules issued by the school.

Public elementary and secondary school grounds also are not considered places where persons can engage in assembly and protest.  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, such as wearing armbands to demonstrate opposition to a war, that are not disruptive to the school environment.

Q:        DO I NEED A PERMIT IN ORDER TO CONDUCT A PROTEST?

A:         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.  One of the main reasons for that constitutional provision was to forbid any requirement that citizens obtain a license in order to speak out.  The government cannot require that individuals or small groups obtain a permit in order to speak or protest in a public forum.

However, if persons or organizations want to hold larger rallies and demonstrations, they may be required by local laws to obtain a permit.  The Supreme Court has recognized that the government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a parade or rally.  Government officials cannot simply prohibit a public assembly according to their discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Such time, place and manner restrictions can take the form of requirements to obtain a permit for an assembly.

Whether an assembly or demonstration requires a permit depends on the laws of the locality.  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 involves more than 50 persons or the use of amplification.

Q:        DO COUNTER-DEMONSTRATORS HAVE FREE SPEECH RIGHTS?

A:         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.

Q:        WHAT CAN'T I DO IN EXERCISING MY RIGHTS TO PROTEST?

A:         The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The First Amendment does not provide the right to conduct a gathering at which there is a clear and present danger of riot, disorder, interference with traffic on 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 permissible under the First Amendment.

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Q:       AM I ALLOWED TO CARRY A WEAPON OR FIREARM AT A DEMONSTRATION OR PROTEST?

A:         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’s guarantee to freedom of speech. Not all conduct can be considered “speech” protected by the First Amendment even 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 not expression protected by the First Amendment.

The right to possess a firearm is protected by the Second Amendment, and all states allow carrying a concealed weapon in public, although most require a permit to do so. Some states allow persons to openly carry firearms in public. However, it is not yet settled whether 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 state law. Possession of weapons also may be prohibited in certain places where demonstrations might take place, such as a national park.     

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.  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.

Q:        WHAT CAN’T THE POLICE DO IN RESPONDING TO PROTESTERS?

A:         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 “unlawful assemblies” or through mass arrests, illegal use of force or curfews. Elsewhere, expression is limited by corralling protesters into so-called “free-speech zones.” 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 chill expressive activity and 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.

Clearly, as evidenced by the recent tensions in Charlottesville, Va., we’re at a crossroads concerning the constitutional right to free speech.

As Benjamin Franklin warned, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

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 “minority” against the majority, ensuring that even in the face of overwhelming pressure, a minority of one—even one who espouses distasteful viewpoints—would still have the right to speak freely, pray freely, assemble freely, challenge the government freely, and broadcast his views in the press freely.

This freedom for those in the unpopular minority constitutes the ultimate tolerance in a free society. Conversely, as I make clear in my book Battlefield America: The War on the American People, when we fail to abide by Madison’s 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.

Some of this past century’s greatest dystopian literature shows what happens when the populace is transformed into mindless automatons. For instance, in George Orwell’s 1984, Big Brother does away with all undesirable and unnecessary words and meanings, even going so far as to routinely rewrite history and punish “thoughtcrimes.”

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 “safe” and “accepted” 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.

This is the final link in the police state chain.

If ever there were a time for us to stand up for the right to speak freely, even if it’s freedom for speech we hate, the time is now.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.