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Protestors' Rights Legal Issues
Protesting constitutes a form of expression protected by the First Amendment. Americans enjoy great liberty in the realm of expression, but people cannot always say whatever they want, whenever they want, wherever they want, and however they want. When the government attempts to limit speech, the courts look for a few key characteristics to determine whether the limitation is constitutional or not. Whether the speech takes place in a public or non-public forum, whether the government restriction is content-neutral, and whether the protest involves expressive conduct as well as spoken and written words – all these variables come into play when courts pass judgment on speech restrictions.
The Supreme Court addressed the issue of free speech in a public forum in a case called U.S. v. Grace (1983). The issue of public or non-public forums concerns government-owned property. In this case, Grace was threatened with arrest for handing out leaflets on the sidewalk in front of the Supreme Court building. Police threatened another person for displaying a picket sign. The Supreme Court ruled that the law forbidding these types of protests inside the Supreme Court, on its grounds, and on the sidewalks around it was unconstitutional. The Supreme Court held that "distributing leaflets and picketing are expressive activities involving speech protected by the First Amendment." Moreover, public places like parks, streets, and sidewalks are prime examples of traditional public forums. The Court limited the power of the government to restrict speech in these places. "The government may enforce reasonable time, place, and manner regulations as long as the restrictions are 'content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'"
These "time, place, and manner" restrictions can take many forms. For example, cities often require that people obtain a permit before they rally or protest. The Supreme Court has required that the permit be given within a reasonable time (Freedman v Maryland). Otherwise, the government would be able to limit speech indefinitely, not by passing a law against the speech, but simply by delaying the issuance of a permit to hold the lawful rally. Another example would be a limit on how loud a rally could be if it was held on public streets next to homes, especially at night when people are trying to sleep.
The key to constitutionality lies not only in "time, place, and manner" restrictions, but in the question of content-neutrality. As well, the government cannot stop someone from speaking or protesting just because it does not like the content of what he/she is saying. Government limitations on speech based on content are unconstitutional.
In a non-public forum things are different. The Supreme Court discussed this issue in a case called Perry Education Association v. Perry Local Educators' Association (1983). The Board of Education in Perry Township, Indiana, originally gave two teachers' unions access to interschool mail systems and teacher mailboxes. Then it signed a contract with the Perry Education Association (PEA) to be the exclusive bargaining representative for the district's teachers. The Board gave PEA exclusive access to the school mail system. It also revoked access for Perry Local Educators' Association (PLEA), the other union. PLEA claimed that this action violated its First Amendment right to free speech.
The Supreme Court ruled that the property in question, the school mail system, was not a traditional public forum. As such, the government can "reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Time, place, and manner restrictions can also apply. The Court agreed that the new School Board policy does limit the speech of the PLEA. But, even though the school district used to let PLEA use the mailboxes, it does not have to continue, because the mail system is not a traditional public forum. Giving exclusive use of the system to PEA is a reasonable regulation on the PLEA's speech because of the special nature and responsibilities of the PEA's exclusive bargaining contract. The union represents all teachers, and it must be able to communicate with them without confusing them or sending them contradictory material sent by a rival union. The school district used the mail system in an appropriate and reasonable manner. In the process it limited PLEA's speech. The school district did not limit the PLEA's speech because it disagreed with it, so the limitation was found to be constitutional.
No matter whether it occurs in a public or non-public forum, speech and protesting can take many forms. Rallies, picket lines, chants, displaying banners and signs, and handing out leaflets constitute just a few examples. But the Supreme Court has held that expression comprises more than just the spoken word. The issue becomes complicated in the realm of symbolic speech and conduct as speech. The First Amendment guarantees Americans a right to free speech. "Conduct" involves some sort of action. Spoken words are clearly speech. The printed word has enjoyed strong protection. Symbolic speech, like wearing a black armband to protest the Vietnam War (see Frequently Asked Questions) also enjoys First Amendment protection. But, action is a different realm. Numerous actions are illegal today, and very few people claim to have an unlimited freedom of action.
