Criminal Law

When May Government Restrict Your Right to Gather and Protest?

By E.A. Gjelten, Author and Editor
People in the U.S. have a constitutional right to assemble peacefully—for any reason or for no reason. But as with all rights, there are some limits.

The right of assembly is closely linked to its more famous companion in the First Amendment to the U.S. Constitution: freedom of speech. Both rights have been at the heart of controversies for much of our country’s history, from picketing strikers in the 1930s to civil rights sit-ins in the 1960s, from KKK rallies in the 1920s to white supremacist marches in the 2010s. But the right to gather with others isn’t limited to political protests. It can also include simply hanging out with friends in public—or, as the U.S. Supreme Court put it, the “freedom to loiter for innocent purposes” (Chicago v. Morales, 527 U.S. 41 (1999)).

Rights Have Limits

No First Amendment rights are absolute, but the right to gather is the only one that includes the most important limit in the actual words of the amendment: “the right of the people peaceably to assemble.” That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940)). The “clear and present danger” standard is a particularly high hurdle for government officials to overcome if they want to prevent planned gatherings ahead of time.

Violence or the threat of violence isn’t the only limit on the right of assembly. Authorities may also prevent or stop gatherings that clearly pose other immediate threats to public safety. Police routinely arrest protestors who block traffic in freeways or bridges. That’s generally allowed, because maintaining public safety involves keeping streets open and traffic moving.

At the same time, however, courts have repeatedly held that authorities aren’t justified in breaking up public protests just because they slow traffic, inconvenience pedestrians, are annoying, or make other people mad (see, for example, Edwards v. South Carolina, 372 U.S. 229 (1963) and Coates v. City of Cincinnati, 402 U.S. 611 (1971)).

Time, Place, and Manner Restrictions

As is true for limits on free speech, courts have held that government may set rules on where, when, and how public protests and other gatherings can take place, as long as those rules:

  • are reasonable
  • aren’t “content-based,” meaning they to aren’t an attempt to squelch demonstrations based on their political message, and
  • are “narrowly tailored,” meaning they’re designed to serve legitimate concerns (like safety) with as few restrictions as possible on constitutional rights.

Some examples of how these guidelines work in particular situations:

  • The public square. There’s less leeway to restrict demonstrations and other gatherings in places that are traditionally considered “public forums” for free expression—such as sidewalks, parks, and public squares—than on other types of public property like military installations, prisons, courthouses, and airport terminals.
  • Buffer zones. When it comes to laws aimed at keeping anti-abortion demonstrators a certain distance away from clinic entrances and patients, the U.S. Supreme Court has allowed some buffer-zone restrictions while striking down others. The different outcomes usually turn on whether a law is designed to serve important public objectives (like protecting privacy and access to medical facilities) without putting too many limits on the rights of protestors (see, for instance, Hill v. Colorado, 530 U.S. 703 (2000) and McCullen v. Coakley, 573 U.S. __, 134 S.Ct. 2518 (2014).) Of course, different outcomes may also depend on the changing makeup of the Court.
  • Size limits. A federal court struck down an ordinance that limited the size of most gatherings in front of New York City Hall and the adjacent plaza, except for city-sponsored public events. As the court pointed out, the rules could allow city officials to stop people from gathering based on their point of view. Also, the ordinance wasn't narrowly tailored to serve the city’s legitimate safety concerns. (Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D. N.Y. 2000).)
  • Permits. Generally, cities and other governmental bodies (like public universities) are allowed to require groups to get permits for demonstrations, parades, street festivals, and other large gatherings. But courts have struck down these requirements when they impose higher fees or other obstacles linked to the demonstrators’ controversial viewpoints and the expected response. (See, for example, Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).)

Gatherings on Public Property

Because the First Amendment applies only to government actions or laws that violate rights, private property owners are generally free to keep groups from protesting or gathering on their property. But there are limited exceptions. As the U.S. Supreme Court explained, the balance between property owners’ rights and the constitutional rights of people who use that property changes the more owners open up their property for public use for their own advantage, such as on privately owned bridges, railroads, and company towns. (Marsh v. State of Ala., 326 U.S. 501 (1946).)

Also, some states—like California and New Jersey—provide broader rights than the federal constitution for assembly and speech on certain types of private property, such as shopping centers and private universities.

Questions for Your Lawyer

  • A provocative group of white nationalists have targeted our small town—which has a large immigrant population—with frequent rallies that have required huge outlays of money for police overtime. This has been breaking our modest budget. Can we set higher permit fees or require the group to post a bond in order to cover the costs?
  • I was arrested when police shut down a large demonstration after a few protestors spilled onto a major roadway. I wasn’t part of that group. Can I sue the city and the police for violating my constitutional rights?
  • My city has passed a curfew law that bans all young people under 16 from being on the street after 10 p.m. Isn’t that a violation of our right of assembly?

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