Know your rights while protesting

In light of recent protests, I made the decision not to post this week about anything corporate, IP or video game related. 

Instead, I wanted to provide an additional resource to my friends and clients who may be out protesting. To those that are, I salute you and hope you are safe and heard. To those that are not, please consider reaching out to local officials to demand police reform

If you are able, consider making a donation to one of the many organizations supporting the protest movement. I have donated to the NAACP Legal Defense Fund. Here are some other great options: The National Police Accountability Project, the National Action Network, National Urban League or one of the many bail funds out there.

-Brandon J. Huffman

The First Amendment of the U.S. Constitution protects your right to free speech and your right to “peaceably assemble” but the government may set some limited restrictions on how you exercise that right. 

Where can I protest?

  • In “traditional public forums,” like sidewalks and public parks, protesters have heightened protections to gather and express their viewpoints. However, the government can regulate large gatherings on certain major streets and highways to protect protesters and drivers’ safety.   
  • In many instances, protesters may also gather and speak on public property, so long as they are not hindering that property’s primary function (i.e. blocking government employees from entering their place of work).
  • Protesters may not lawfully protest on private property, without the owner’s consent. The government cannot restrict your speech on your own property. 

All that being said, a town or city’s mayor may lawfully implement a curfew to protect public safety. If there is a curfew in place where you are protesting, then police may order you to go home to enforce that curfew. 

Can I legally record the police at a protest?

Yes. If you are lawfully allowed to be in a certain area (see above), then you have the right to photograph or record anything you see, including the police. However, some states regulate the audio of a video under the state’s wire-tapping laws–prohibiting the audio recording of a non-consenting party.

Though police cannot demand you stop recording them, they can order protestors to stop unlawful activities (such as trespassing or breaking and entering) or activities that hinder valid law enforcement activities (such as clearing a street for an EMS vehicle to gain access – a real one, not one made up the next day). 

Can the police search my phone?

Under the Fourth Amendment, police may not seize your phone or require you to show them your photos/videos without a valid search warrant. That includes requiring you to unlock your phone for police to search it. 

However, if police see your lock-screen and an image or message containing unlawful activity appears as a notification that may give police probable cause to arrest you or reasonable suspicion to further detain you for questioning.

Protestors can protect the security of their phones by using pin or password lock screens, rather than facial recognition or fingerprint and disabling lock screen notifications that might lead to probable cause.   

What if the police stop me because I was recording them? 

Police are free to stop and ask you a question; however, they cannot detain you without reasonable suspicion that you have committed–or are about to commit–a crime. Protesting alone does not create that suspicion. 

If police do have that suspicion–and they believe you have a weapon–then they may pat you down (outside of your clothes) for weapons, but that’s it.  If you’re not under arrest, then police may not fully search you or your belongings. You do not have to consent to a police search.  

If you feel like you’re being detained, ask the officer if you are free to leave. If the officer says yes, then walk away peacefully. If the officer says no, then ask what crime they are detaining you for–don’t say anything except to ask for a lawyer.

What if I am arrested?

Stay calm, and stay quiet. The Fifth Amendment (and Fourteenth Amendment’s due process clause) protect your right against self-incrimination. Police are required, under Miranda v. Arizona, to inform you of your rights once you are arrested.  

Incident to the arrest, police are allowed to search you and your belongings–but not your phone. You are not required to unlock your phone for police. They will ask (because they want your consent), but you have the right to say no.  

Finally, when you’re taken to the police station or local jail and questioned, ask for a lawyer. Be prepared to wait, you will likely be there for a few hours before being brought in front of a magistrate judge to set your bail. 

Once you’re brought in front of a magistrate (or any other judge), your Sixth Amendment right to an attorney attaches, meaning the court will have to appoint you a lawyer if you cannot afford one.     

Additional Resources: