EXPLAINER ARTICLE
Written by E.A. Gjelten

What Are My Rights When Protesting?

Your right to protest peacefully and demand change from your government is closely linked to freedom of speech, as well as the right to be free of unlawful arrest and excessive force on the part of the police—all guaranteed by the First, Fourth, and 14th Amendments to the U.S. Constitution.

But no rights are absolute, and there’s certainly no guarantee that the police, National Guard, or other law enforcement will respect your constitutional rights when you’re participating in a protest. So it helps to know the extent of your rights, when to assert them, and what to do when they’re violated.

Your Protest Rights—and Limits

Protest rights stem from the First Amendment’s prohibition on government interference with “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Courts have held that governments may set reasonable limits on where, when, and how public protests can take place, as long as they don’t discriminate based on the protesters’ message, and they’re designed to serve legitimate concerns (like public safety) while minimizing restrictions on constitutional rights. With those general principles, here’s a rundown of your basic rights:

  • Protesting peacefully. You have the right to participate in a protest that's raucous, passionate, loud, and makes other people angry or annoyed—as long as it’s not violent or doesn’t present an immediate threat to public safety or order. Even if bystanders react violently, you’re not responsible unless you directly instigated the violence.
  • Protesting in public spaces. Your protest rights are strongest in public places like parks, sidewalks, and streets (often referred to as “traditional public forums”). You might also have the right to demonstrate on some other public property like plazas in front of government buildings, as long as you aren’t blocking access. But many other kinds of government property are off-limits to protests, including military bases, school property, and inside government buildings (unless you’re participating in public meetings in a way that’s not disruptive).
  • Protesting on private property. Some private property that has been opened to public use is considered a public forum for purposes of protest rights. This includes “privately owned public spaces” like Zuccotti Park in New York, a site of protests during the 2011 Occupy Wall Street movement. On other kinds of private property, you could be charged with trespassing if the owner of the property asks you to leave and you refuse. But law enforcement may not stop you from protesting on private property when you have the property owner’s permission.
  • Protesting without a permit and blocking traffic. Cities may require advance permits for certain protests, including large rallies with sound amplification and marches that will require blocking traffic on city streets. Some courts have made exceptions for spontaneous protests that are responding to current events—like the widespread mass protests in response to the police killing of Floyd George in 2020—although not all cities make such an allowance. Protesters who block freeways or bridges risk arrest, at the discretion of local authorities.
  • Recording police. You have the right to photograph or take video recordings of law enforcement, as long as you aren’t actually interfering with police while they’re carrying out their duties. You don't have to stop recording just because they don't like it.
  • Burning the flag. Expressing your political views by burning the U.S. flag is considered protected free speech.

Your Rights When Police Break Up Protests

Law enforcement may break up protests that have turned violent, present a clear and present danger of violence, or pose another immediate threat to public safety or order. But when they declare an “unlawful assembly” and order protesters to disperse, they must give a clear, audible warning that the gathering is illegal and allow people enough time to leave, as well as an exit route. If they arrest you and other protesters without doing that, it could be a violation of Fourth Amendment protections against unreasonable seizure.

However, you may not have the right to an advance warning before being arrested for violating orders—like curfews—that have been issued as part of an emergency declaration. In essence, the order itself is your warning. So if you're still out on the street after curfew, the police have probable cause to arrest you for violating the order.

Your Rights When You’re Detained or Arrested

Once police stop or arrest you at a protest, you continue to have important constitutional rights. Be sure to make clear that you’re asserting these rights, and start by asking if you’re free to leave. To detain you, even briefly, police must have a reasonable suspicion that you’ve broken the law.

  • You have the right to remain silent. While you may have to identify yourself in some states, you don’t have to answer any other questions—including questions about your citizenship or immigration status. (Learn more about protest risks for green card holders and DACA recipients.)
  • You have the right to refuse consent to a search (other than being patted down for weapons). That includes the right to refuse an officer’s request to see what’s on your phone. After an arrest, authorities may confiscate your phone and keep it if they believe it contains evidence of a crime. But they can’t force you to unlock the device. (Learn more about how to protect your electronic devices when protesting.)
  • If you’re arrested, you have the right to a lawyer (appointed by the government if you can’t afford to hire one) and to make at least one local phone call. If you call a lawyer, police aren’t allowed to listen in on your call.
  • Usually, you aren’t allowed to resist arrest, and you could face criminal charges for resisting even if you didn’t commit the crime you were arrested for. In some limited situations when police are using excessive force, you might have the right to resist (using a reasonable amount of force yourself) if any reasonable person would find it necessary for self-defense.
  • You should be released unless a judge has decided that there was probable cause for your arrest—which must happen within 48 hours after your arrest (or within 24 hours in some states). It could be a violation of your Fourth Amendment rights if the probable cause determination is delayed.

When Your Protest Rights Have Been Violated

Of course, just because you have a constitutional right to protest, that won’t necessarily stop law enforcement from arresting you unlawfully, using excessive force, or engaging in other police tactics that violate protesters' rights. Nor will it help to argue with officers. But if you know your legal rights—and you calmly make it clear that you’re asserting them—that could help in later proceedings, either as part of a criminal case or in civil rights lawsuits against authorities. When and if that becomes necessary, a good criminal defense lawyer or civil rights attorney can help protect your rights.

In the meantime, you can find more information on your rights from the American Civil Liberties Union, either in their general protest guides or in state-specific guides from local ACLU affiliates.


About the author

E.A. Gjelten

E.A. (Liz) Gjelten has been a special projects editor at Nolo since 2016. A generalist when it comes to subject matter, she enjoys using her research, analytical, and writing skills to translate complex legal issues into jargon-free language that’s accessible to lay readers without compromising accuracy.

Nolo. In addition to her work on surveys about lay people’s experiences with the legal process, Liz writes articles for Nolo.com, Lawyers.com, Criminaldefenselawyer.com, and Alllaw.com in several areas of the law, including workers’ compensation, criminal law, civil rights, school law, and animal law. 

Legal background. Before coming to Nolo, Liz worked for 12 years as a legal author for Thomson Reuters, writing about new legal developments in workers’ compensation and family law for Westlaw and print publications. She also wrote an annual roundup of new California legislation for a monthly family law journal. Before that, Liz worked as an author, legal editor, and managing editor for California Family Law Report, a small legal publishing company.

Other pursuits. Liz has a B.A. in Political Science from the University of California at Los Angeles and an M.F.A. in Creative Writing from San Francisco State University. She’s a produced playwright and has taught at San Francisco State University and New College of California. She’s also worked as a freelance book editor, journalist, and grant writer.

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