What are Your Rights When it Comes to Protesting?

If you live on planet earth and have been anywhere near a television, radio, or the internet in the past several months, then you are probably aware that one of the candidates running for President of the Unites States has rallies which are attracting many protestors. As the protests grow, so does the confusion surrounding what is and is not allowed in the world of political protest. This seems like a good time to review what your rights are when exercising your First Amendment rights.

What Is Protected Speech

Freedom of Speech and Freedom of Assembly (protest) are guaranteed to all of us by the First Amendment in the Bill of Rights. This gives very broad rights to all of us to speak freely and protest against things we strongly disagree with. Like all rights, however, First Amendment rights are not unlimited. If you are engaging in protests, your rights are broader than what you are likely hearing on television. For example, you are allowed to picket and protest on public sidewalks, in parks, and in plazas. While protesting you are allowed to chant and sing protest songs and distribute flyers and literature if you choose. You cannot block access to buildings or the sidewalk, distribute things that are defamatory, or anything that might incite an immediate disturbance.

Where Can You Engage in Free Speech Activities?

On streets, sidewalks, plazas, and other public forums, all types of expression are protected by the First Amendment. California also permits speech-related activity, such as handing out literature or flyers, in facilities which are operated by state and local governments and are open to the public. This includes government buildings and universities. The only limitation is that the activities cannot significantly disrupt the operation of the building or facility. Federal buildings like courthouses and office buildings do restrict free speech and related activity. Private property owners must consent for protesters to be allowed the same freedoms California allows in public buildings.


Permits are not generally needed to engage in free speech, unless there will be a march or a parade that is going to require streets to be closed, if there is going to be a very large rally, or if there is going to be any activity which will disrupt pedestrian or vehicle traffic. Different cities and towns throughout California have different rules. San Diego does require permits for certain organized activities; specifically if there is going to be 75 or more people and there will be street closures needed.  

Provoking the Crowd

What happens when a speaker gets the crowd excited? It depends. Generally speaking, no matter how inflammatory the words are, a person cannot be punished for getting the passions of an audience aroused. A speaker can, however, be arrested and charged with incitement if the speaker intends to incite criminal activity through the message of the speech and illegal activity does occur. So, for example, if a speaker tells a fired-up crowd to beat up a protester and promises to pay the legal bills of anyone who does so, that is likely incitement.

Rights of Counter-Protest

Just as the First Amendment protects the rights of the people to protest and demonstrate, it also protects the right of others to counter-demonstrate. Counter-demonstrators must be allowed, but should not be allowed by the police to disrupt the event physically. Counter-protestors do have a right to voice their displeasure however. The role of the police in this situation is to keep a firm line separating the two groups, so that no violence ensues, while allowing both sides to peacefully assemble.

Restrictions on What Protestors May Carry

The police are allowed to restrict the size or types of signs or other items protestors carry only as necessary to protect safety. The regulations cannot infringe too much on the right of the protestors to display signs. In San Diego, the city prohibits the use of clubs, pipes, or metal stakes at rallies, demonstrations, and parades. The city can also require that wooden stakes holding signs be less than two inches wide and a quarter inch thick. Protestors cannot be entirely prohibited, however, from carrying signs mounted on plastic or wooden handles.

Your Rights With the Police at a Rally or Protest

You cannot be arrested for refusing to identify yourself if you have not committed a crime. If the police ask you for identification, they must have reasonable suspicion or probable cause that you committed a crime. You also do not have to answer any questions the police ask you (unless sometimes when you are on probation or parole), even if you are required to identify yourself. You cannot be subject to a pat down by the police either unless they have reasonable suspicion that you are armed and dangerous. You should not physically resist if the police attempt to search you, but you should state loud and clear that you do not consent to the search.

What if you are arrested?

As is the case with any arrest, you have the right to remain silent, and anything you say can be used against you. You also have the right to speak with a lawyer before speaking with the police. You should exercise that rights, and not engage in any discussions or statements until you talk to an experienced criminal defense attorney. Even if you do not have money, you have the right to a free attorney, so ask for one. The police do have the right to basic information about you, including your name and address, and they can take your photograph and fingerprints if they arrest you. Your belongings may also be searched, except a warrant is needed to search your cell phone, and if consent to search is requested you have the right to refuse consent. California law requires that anyone arrested without a warrant must be released within 72 hours after the arrest unless a judge decides there is probable cause to hold you longer. This does not include Saturdays, Sundays, and holidays though.

If you or a loved one was arrested exercising your right to free speech, you need to speak to an experienced criminal defense attorney right away. If you would like to discuss the best way to handle any charges being brought against you, call Alex Ozols, owner of the Ozols Law Firm, for a free consultation.