for the Speech We Hate: The Legal Ins and Outs
of the Right to Protest
By John W.
“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
freedom for the thought that we hate.”—
Supreme Court Justice Oliver Wendell
24, 2017 "Information
- 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
to protect the minority against the majority.
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
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.
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
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
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.
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
the government may not prohibit the expression
of an idea simply because society finds the idea
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
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
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.
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
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.
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.
WHAT ARE MY RIGHTS TO PROTEST IN A TRADITIONAL
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
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.
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.
CAN MY FREE SPEECH BE RESTRICTED BECAUSE OF WHAT
I SAY, EVEN IF IT IS CONTROVERSIAL?
A: No, the First Amendment protects
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
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.
HOW DO THESE RIGHTS APPLY TO PUBLIC PLACES I
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
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
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
such as wearing armbands
to demonstrate opposition to a war, that are not
disruptive to the school environment.
DO I NEED A PERMIT IN ORDER TO CONDUCT A
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
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
in order to regulate competing uses of public
impose a permit requirement on those wishing to
hold a parade or rally. Government officials
prohibit a public assembly according to their
the government can impose
restrictions on the time, place, and manner of
provided that constitutional safeguards are met.
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
DO COUNTER-DEMONSTRATORS HAVE FREE SPEECH
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
WHAT CAN'T I DO IN EXERCISING MY RIGHTS
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
under the First Amendment.
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
protected by the First Amendment.
The right to possess a firearm is protected by
all states allow carrying a concealed weapon in
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
Possession of weapons also may be prohibited in
where demonstrations might take place, such as a
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.
WHAT CAN’T THE POLICE DO IN RESPONDING TO
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
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
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.”
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
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
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.”
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.
the final link in the police state chain.
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
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 email@example.com.