Protesting in Your City: Understanding First Amendment Rights

May 23, 2018

Rusi Patel Patel, GMA Senior Associate General Counsel

This article appeared in the May 2018 issue of the Georgia's Cities newspaper.
Patel
A few weeks ago I was driving through a small town in Indiana. It was sleeting and snowing and cold. It also happened to be the day of “March for Our Lives,” a student-led demonstration in support of tighter gun regulations. Despite the terrible weather, as I drove by the courthouse I noted dozens of people out on the courthouse steps. It reminded me of my time working for a city in Southeastern Georgia almost a decade ago when we had a similarly sized Tea Party protest in front of the courthouse on a miserably hot summer day.

I recollect these events to make a point: People who want their voices to be heard and who want to exercise their First Amendment rights are not going to care about the size of your town, the weather or anyone else’s politics. Lately, protests in all shapes and forms have become more frequent and easier to organize. This combination makes it more likely you may see one in your town.

These protests may not be politically welcomed in your town, but that does not mean that your city can revoke the First Amendment rights of a group, or even a sole protestor. That said, however, it does not mean that people and groups have an unfettered right to protest in your city.
 
Gates v. Khokhar
This recent Georgia case, which was decided in March by the federal 11th Circuit, helps explain one of the first limitations on First Amendment rights. Gates was arrested at a protest in downtown Atlanta for violating the state’s anti-mask statute, which makes it a misdemeanor to wear a mask if the mask was worn to conceal one’s identity and if the wearer of the mask knew or should have known that wearing the mask would provoke apprehension of intimidation, threats or violence.

The federal court determined that Gates should have known his actions were intimidating after protesters were repeatedly warned by police to take their masks off. This gets to the first main point when dealing with protests. Violence or threats of violence are outlawed and not protected under the First Amendment.
 
McDonnell v. Denver
Another recent case, this time out of Colorado, which was decided in January by the federal 10th Circuit, helps us look at the other main limitation on First Amendment rights. In this case, a group of protesters had a large protest in various parts of the Denver airport without a permit. The protesters were warned that they could be arrested for protesting without a permit, and some were moved to an outdoor area of the airport (versus the middle of a terminal).

Although no one was arrested, a group of protesters filed suit alleging First Amendment violations. They specifically argued that the airport was a public forum and, thus, open to First Amendment activity. There is a general rule of First Amendment law that the government cannot impose content-based restrictions on speech in public forums. Airports, however, are nonpublic forums and regulations governing speech in non-public forums can be allowed if they are based upon the reasonableness of the restriction in light of the purpose of the forum. The 10th Circuit recognized this distinction in upholding Denver’s regulations.

Just because the government owns the property does not make the property automatically open for First Amendment purposes. The inside of a courthouse is different than a public park, for instance. If your city is presented with a potential protest it is vital that you work with your city attorney to make sure the city does not violate protesters’ First Amendment rights. That does not mean that the city cannot impose reasonable time, place and manner regulations for protests. Remember, having your city attorney involved in the beginning is always cheaper than bringing in your city attorney after the error has already been committed.

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