Can government officials prohibit all demonstrations in The American Civil Liberties Union (ACLU) has a long history of • In its 1942 decision in Chaplinsky v. New Hampshire (315 U.S. public forums during controversial events? protecting First Amendment rights around the nation and in Tennes- 568), the Supreme Court ruled that speech that incites violence No. Officials may employ extra law enforcement protection to deter see. In 1925, ACLU Cooperating Attorney Clarence Darrow de- or directly encourages others to commit a crime (“fighting violence during events expected to excite the interests of the public, fended biology teacher John T. Scopes against charges he had vio- words”) is a threat to the public safety and is therefore not pro- and they may institute reasonable time, place and manner restric- lated the state anti-evolution statute in the now-infamous “Monkey tected by the First Amendment. tions on all groups wishing to protest. But officials cannot deny out- Your Right to Protest Trial.” Today, ACLU of Tennessee (ACLU-TN) continues its work • In 1973, the Supreme Court found in Miller v. California (413 right the constitutional right to protest on public streets and side- to translate the guarantees of the First Amendment and the entire Bill U.S.15) that the First Amendment does not protect “obscene” walks, public parks, and other public forums. of Rights into realities for all Tennesseans. material. The Court established the “SLAPS” test for determin- ing obscenity: speech is obscene if “the work, taken as a whole, Can protestors hold a rally or demonstration outside a federal in Tennessee This publication is specifically designed to answer questions you lacks serious literary, artistic, political, or scientific value.” courthouse? may have about Your Right to Protest. However, this pamphlet is However, obscenity remains difficult to define – as Supreme Demonstrations in front of federal court buildings can be restricted. only an outline of current federal law. Not every issue surrounding Court Justice Potter Stewart once said: “I know it when I see it.” If you wish to hold an event outside a federal building, you first protest rights is discussed, and this brochure should not be taken as should contact the U. S. Marshall to discuss your plans. specific legal advice. If you have legal questions or believe you need • The courts have ruled that defamation – a known false statement legal help, you should consult a private attorney. about a person or an organization intended to harm the reputa- What if protestors want to participate in “civil disobedience?” tion of that person or organization – is not protected by the First Civil disobedience is generally understood as violating the law Amendment. Defamation in writing is libel, and defamation through a non-violent manner of protest. While engaging in civil THE RIGHT TO FREE EXPRESSION through the spoken word is slander. disobedience may prove a point or gain support for a movement, no one is legally entitled to break the law no matter how minor the in- How does the First Amendment protect my right to free fraction. While ACLU-TN supports the free exercise of the consti- expression? PROTESTING ON PUBLIC PROPERTY The First Amendment guarantees free expression by protecting the tutional right to protest, it does not encourage anyone to break the right to freedom of speech, freedom of the press, and freedom of Where can I exercise my First Amendment right to pass out leaf- law. If individuals decide to participate in civil disobedience, you should anticipate being arrested and prosecuted. assembly and petition. The courts also have ruled that the First lets or to hold a rally, march or demonstration? Amendment protects the freedom of association, which is implied by Because the First Amendment protects free speech from infringe- What should protestors do if they are confronted by law en- “If there is a bedrock principle underlying the the other freedoms listed above. ment by the government, leafleting and assembly is generally per- forcement? missible in most public areas, such as public parks, public streets and It is very important to be courteous to law enforcement and obey First Amendment, it is that the government Free expression encompasses all forms of speech, from the spoken sidewalks, and outside public buildings. These locations are com- their orders even if you believe their actions to be constitutionally may not prohibit the expression of an idea and written word, to T-shirt slogans and black armbands, to rallies monly known as public forums, which are generally defined as areas improper. Failure to obey a police officer may result in a criminal and protest signs, to organizational memberships. The First Amend- that can be used for the communication of any and all views on po- offense arrest under the Tennessee Code Annotated (TCA) such as simply because society finds the idea itself ment protects free expression from infringement by federal, state and litical and social issues. resisting arrest, a Class B misdemeanor (TCA 39-16-602), or disor- offensive or disagreeable.” local governments. derly conduct, a Class C misdemeanor (TCA 39-17-305). After the There are three basic types of public forums: Can the government place any restrictions on my right to free situation is over, you can object to law enforcement’s actions in • A traditional public forum is any area historically dedicated to expression? court. The court may dismiss charges against you if the police are public assembly and protest, such as public streets, public parks —Justice William J. Brennan Yes. The courts have consistently ruled that while the government found to have violated First Amendment rights. and public sidewalks. Texas v. Johnson (1989) may not restrict the actual content of speech, it may restrict the time, • A limited public forum is public property that, while not typi- For large demonstrations, it is a good idea to arrange for impartial place, and manner of speech. For example, a municipality cannot cally dedicated to public assembly, has been opened to expres- legal observers to be present. Legal observers should not participate permit members of only one political party to hold rallies on the pub- sive activity by particular categories of people or on particular lic streets. This would be restricting speech based on its content. But in the demonstration, but should document any actions taken both subjects. Examples of limited public forums would be university the government may prohibit political rallies from taking place at by demonstrators and by law enforcement. The testimony of legal meeting rooms open for use by student groups or a city audito- observers is typically more trusted in court proceedings than that of unusual hours or from blocking pedestrian or vehicle traffic. This rium open for theatrical performances. demonstration participants. ACLU-TN can conduct training for le- would be restricting only the time, place and manner of the speech. • A non-public forum is public property that is not a traditional gal observers. If your organization is interested in such a training, The courts have generally found time, place and manner restrictions public forum and that has not been opened for public expres- please contact us. to be permissible because such regulations serve to ensure the safety sion. Examples of non-public forums include prisons and mili- and order of the community at large. However, it is important to note tary bases (more information below). The government can se- that in order to be constitutional, time, place and manner restrictions verely restrict public expression in a non-public forum. must be content-neutral, meaning they must apply to everyone re- The First Amendment does not regulate the activities of private indi- gardless of the opinion being expressed. viduals, businesses or organizations. You therefore do not have a Is any type of expression not protected by the First constitutional right to free speech, assembly or protest while on pri- Amendment? vate property. Prepared by the Yes. The courts have recognized several types of speech that do not Can the government place any restrictions on the use of a public American Civil Liberties Union fall within First Amendment guarantees: forum? • In 1919, the Supreme Court ruled in Schenck v. U.S. (249 U. S. Yes. Depending on the specific public location and the government’s of Tennessee 47) that the First Amendment does not protect speech that cre- interest in ensuring safety and order, restrictions governing the use of T E N N E S S E E (ACLU-TN) ates a “clear and present danger” (such as “shouting fire in a public property for assembly and protest may apply. The following theatre”). are some location-specific regulations to consider when planning (615) 320-7142 P. O. Box 120160, Nashville, TN 37212 www.aclu-tn.org protest activities: Does the First Amendment protect my right to leaflet door-to- Can I be charged a fee for obtaining a permit? government to subject organizations to surveillance and criminal Public sidewalks: Demonstrating groups should leave room for pass- door to private residences? Yes, as long as the fee is reasonable and is not overly burdensome so charges for political advocacy. For example, suppose a protestor gets ers-by and should not block the flow of pedestrian traffic. If leaflet- Yes. Several important Supreme Court cases involving Jehovah’s as to chill free expression. Generally, a reasonable permit fee should excessively angry and throws a rock at a building. Before the PA- ing, demonstrators should not force passers-by to accept leaflets or Witnesses – whose faith mandates the door-to-door distribution of cover the administrative costs of processing a permit application. TRIOT Act, the protestor would likely face a misdemeanor charge, harass individuals who refuse leaflets.