Know Your Rights When You Protest

June 8, 2020

By: Bradley A. Fuller, Esq.

Protester Rights, Freedom of speech and the right of the people to peaceably assemble are fundamental liberties guaranteed by the First Amendment of the United States Constitution and Article One, Sections Four & Five of the Illinois Constitution. There are, of course, limits to these rights, and anyone engaged in public speech should possess at least a basic understanding of the law.

Group sit-ins, picketing, parades and the like are inherently inconvenient to society. Pedestrian and vehicle traffic may be jammed, the tranquility of public parks may be shattered. That is indeed rather often the point of such demonstrations, to demand attention. “The fact that picketing also inflicts economic injury on the object of picketing will not alone make picketing unlawful.” Eagle Books, Inc. v. Jones, 130 Ill. App. 3d 407, 85 Ill. Dec. 716, 474 N.E.2d 444 (4th Dist. 1985).

Most jurisdictions require protest organizers to obtain permits when it is reasonably foreseeable that their event will obstruct roadways or monopolize public spaces. However, prior notice and the issuance of permits are never required in order for the people to safely express constitutionally protected speech. Very often protests emerge spontaneously following major cultural events such as a jury verdict in a criminal trial. Such large scale demonstrations are always permissible so long as they do not unreasonably obstruct the rights of other citizens. When possible, it is generally advisable to obtain a permit in order to expand the breadth of a demonstration, though it is not always a legal requirement.

It is important to always keep in mind that the right to free speech and peaceable assembly does not give carte blanche for protesters to occupy any space they desire. No trespassing laws may still be strictly enforced during a demonstration and protesters should avoid conducting their activities on private property. Traditional public forums such as sidewalks, government building plazas, and parks provide the safest venues for protests.

Similarly, violence is never permissible behavior during a lawful protest. The key constitutional word is PEACEABLY. The Supreme Court has stated rather plainly that, “demonstrations lose their constitutional protection if the participants engage in violence.” Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Landry v. Daley, 280 F. Supp. 938 (N.D. Ill. 1968), judgment rev'd on other grounds, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971).

Encouraging the violent acts of fellow protesters may be viewed by law enforcement as an abandonment of your right to continue in the demonstration. If you witness violent behavior on the part of another protester, you should discourage the actions, disassociate yourself from the trouble makers and report the illegal activity to your group leaders or law enforcement.

The criminal actions of other individuals during a protest will never excuse your similar illegality. Once arrested and charged for violations such as damage to public property, many protesters will say, “but other people were doing the same thing and they weren’t arrested.” This is most definitely not a viable legal defense. While it is true that law enforcement officials may only be able to apprehend a small number of transgressors, the fact that others were engaged in the same illegal conduct and escaped justice will not mitigate your prosecution and sentence if charged.

While protesters are expected to abide by the law and behave responsibly, law enforcement officials are likewise required by the law to comport themselves appropriately. While it is, of course, necessary for police to maintain order and safety, their orders and actions must be reasonably related to legitimate policing functions. This fact is true regardless of the nature of the protest. If you observe officers violating the rights of peaceful protesters, it is perfectly lawful to record their actions. The Illinois legislature has enacted a specific exception to the eavesdropping statute to allow for citizens to make video and audio recordings of law enforcement officers engaged in their professional capacity, as long as the recordings are made from a lawful vantage point and do not obstruct police operations. 720 ILCS 5/14-2. It is important to note that police may not examine the contents of your smartphone without a warrant or consent. Do not be coerced into voluntarily turning over the contents of your phone to police. It is a serious violation for police officers to demand that you delete recordings that you have made of their actions.

At the recent demonstrations in Chicago many peaceful protesters were arrested and charged with city ordinance violations such as disorderly conduct under Section 8-4-010 of the municipal code. While ordinance violations are not technically criminal charges, they have many of the same consequences. Adverse findings in ordinance cases can result in hefty fines, and a permanent public record of alleged illegal behavior. Municipalities are highly motivated to obtain convictions in protester cases in order to insulate themselves against civil rights violations bought by demonstrators who were mistreated by police.

The right of all American citizens to peaceably assemble and speak freely, especially if that speech is critical of the government and its agents is crucial for the health of our democracy. If you or someone you know has been arrested, cited, or even merely intimidated by police, please call the law firm of CTM Legal Group LLC now to protect your rights.