Recently, there has been a heightened sense of public awareness regarding protests and demonstrations that have occurred throughout the United States. This article discusses and considers the conduct of people engaging in the act of protest and rioting and examines the propriety and legal consequences of each. If a protest evolves into violence, vandalism, and insurrection, should that activity be constitutionally protected, or does it justify a massive law enforcement response with a suppression of constitutional rights?
This article also reviews the balance intended by the framers of the Constitution and the resulting or collateral consequences when individuals and groups of citizens cross the line and engage in criminal activity justifying an arrest. The discussion includes subsequent results to state and local government and to individual members of the law enforcement community when they go too far and violate the civil rights of persons peacefully protesting. It should be noted that this article is not intended to provide a comprehensive examination of the law concerning the right to protest. Rather, the intent is to give the reader an overview sufficient to further explore the subject matter.
The Constitutional Protections for Protest
A fundamental understanding of the Bill of Rights of the U.S. Constitution enacted in 1791 is a good starting point for the discussion. An analysis of the legal history of the First and Fourth Amendments is essential to an understanding of the intended balance in protecting constitutional rights to protest and gather peacefully. The First Amendment protects the right to freedom of religion, speech, the press, and peaceable assembly and the right to petition the government for a redress of grievances. The Fourth Amendment protects the rights of the people to be secure in their persons, houses, and effects against unreasonable searches and seizures unless based on “probable cause.”
Before beginning a discussion of the Bill of Rights, it is helpful to consider the events that led to the Boston Tea Party in December 1773. Widespread outrage resulted from more than 100 years of autocratic rule under Great Britain. Such oppressive actions included, but were not limited to, the 1764 Sugar Act and the 1767 Townshend Acts, which taxed commodities, including tea, more strictly. This onerous situation was coupled with the denial of direct representation of the colonists in the British Parliament, making them unable to look out for their own best interests. Although the colonists attempted to change this untenable condition by negotiating with the British Parliament, the negotiations ultimately failed. This culminated with throngs of colonists dumping hundreds of chests of British tea into the Boston Harbor. Forever after, this act of protest would be known as the Boston Tea Party (for a more detailed analysis of the Boston Tea Party, see Jeffrey Kluger, Raise Your Voice: 12 Protests That Shaped America ch. 1 (2020)).
As a result of the Boston Tea Party, the British Parliament passed a series of laws that included shutting down the port of Boston and eliminating all local governmental bodies. The repressive move stripped the Massachusetts Colony of any power of self-governance and resulted in added defiance and resistance among the more than 2 million people who lived in the colonies. On April 19, 1775, the first shots of the Revolutionary War were fired in Massachusetts. On July 4, 1776, the Declaration of Independence openly asserted that the United States had separated from Great Britain. The Revolutionary War resulted in many thousands of deaths. It was in this context that the United States of America came into existence with the enactment of the U.S. Constitution and the Bill of Rights.
Protests, riots, and revolution were the heart, body, and soul of the United States and our constitutional democracy. Indeed, the assembly portion of the First Amendment grew out of an intense opposition to governmental authority, and it was intended to protect such opposition, even if this opposition was expressed in a way that was disrespectful to public officials. Both Samuel Adams and John Adams emphasized the importance of the right to assemble and petition the government for a redress of grievances, saying that the right to assembly was a most important principle of self-government (see Nikolas Bowie, The Constitutional Right of Self-Government, 130 Yale L.J. 1652, 1727–28 (2021)).
The U.S. Supreme Court has sanctioned the fullest and freest exercise of First Amendment rights when they are exercised in a peaceable and orderly manner. However, it is essential to understand that “peaceable and orderly” are not the same as “respectful and courteous” (see Barron v. Kolenda, 491 Mass. 408 (2023) (upholding the right to address a public meeting in a rude and insulting way by stating to the chair of a local board, “You’re a Hitler.”)).
Limitations on First Amendment Rights
The rights created by the First and Fourth Amendments must be viewed and understood within the framework of almost 250 years of U.S. legal history. In the context of this background, dissident political speech has substantial constitutional protections in both the United States and most state constitutions. Even though these rights are well-protected, exercising them in the form of protests and other types of activism may clash with state and federal criminal laws and local rules, regulations, and policies. Courts have determined that First Amendment rights to free speech and assembly are not absolute and may be regulated and limited by reasonable restrictions as to time, place, and manner.
The Supreme Court has also held that laws and regulations must be content-neutral and narrowly tailored to serve local interests. In addition, these laws and regulations must allow for ample alternative means of communication available to exercise First Amendment rights, considering the audience the participants are trying to reach and the contribution of the desired location to the meaning of the speech and assembly. For example, a protest on a college campus may not be limited to only one hour at 3:00 am in the middle of the football field.
The Supreme Court has ruled that there are some areas in which the government may absolutely prohibit the exercise of First Amendment rights, especially the right to assemble. For example, in Adderley v. Florida, 385 U.S. 39 (1966), the court held that jailhouse property could be declared off-limits for parades and other political demonstrations. The area surrounding a courthouse may be similarly restricted. Other areas where the state may restrict the clamor of political demonstrations include libraries, schools, and hospitals.
First Amendment constitutional rights are more fully protected in areas known as “traditional public forums.” These include public sidewalks, parks, and plazas, so long as these areas are not being blocked by the protests. It is important to understand that counter-protesters also have First Amendment rights. The law enforcement community has an obligation to treat protesters and counter-protesters the same and to keep them separated. In addition, persons exercising their constitutional rights by way of lawfully speaking, demonstrating, or picketing may be entitled to police protection to prevent substantial disruptions of their First Amendment rights. The Supreme Court has allowed states and local jurisdictions to require permits, in certain circumstances, for parades and demonstrations. However, this requirement may depend on the locations of these activities, allowing law enforcement to deal with potential traffic problems. It is important to note that any attempt to restrict freedom of assembly must be justified by a clear public interest and not by speculated threats that are not a clear and present danger.
The Supreme Court has also carved out several areas of expression involving activism and political advocacy that the federal and state governments may lawfully restrict. These areas include subversive advocacy and speech that incite unlawful and subversive activity, “fighting words,” symbolic expression, and defamation. These exceptions are discussed in greater detail below.
Subversive advocacy strongly urges large numbers of people to engage in lawless conduct. Speech that advocates illegal or subversive activity may not be prohibited unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444 (1969)). Applying this rule, the Supreme Court found that the government may not punish someone who, in opposition to the draft during the Vietnam War, stated, “If they ever make me carry a rifle, the first man I want in my sights is L.B.J.” (i.e., President Lyndon B. Johnson) (Watts v. United States, 394 U.S. 705 (1969)).
Fighting words are directed at provoking a specific person. In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the Supreme Court defined “fighting words” as words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” or prompt “a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” However, speech that merely offends or hurts someone’s feelings is protected by the First Amendment.
Symbolic expression may also be considered a form of free speech protected by the First Amendment, with certain limitations. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court overturned the conviction of a person who burned the American flag while protesting the policies of President Ronald Reagan. Likewise, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court reversed the suspension of a high school student for wearing a black armband in protest of the Vietnam War. In United States v. O’Brien, 391 U.S. 367 (1968), however, the Supreme Court upheld federal legislation prohibiting the burning of draft cards in order to maintain the integrity of the Selective Service System.
Regarding defamation, see the often cited case decision of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the Supreme Court unanimously decided that to sustain a defamation claim, the First Amendment (freedom of speech and freedom of press) requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without an adequate investigation.
Violations of Protesters’ First and Fourth Amendment Rights
When individual members of the law enforcement community use force, arrest a person, or prosecute a person in retaliation for the exercise of clearly established First Amendment rights, there is a potential cause of action under the First and Fourth Amendments. This is especially true when there is an absence of probable cause, as required by the Fourth Amendment. However, if protesters were arguably violating some minor law during the protest, their claims may well be barred (see Michael Avery et al., Police Misconduct: Law and Litigation § 2:16 (3d ed. 2017–2018)).
A civil action for deprivation of rights is established under 42 U.S.C. § 1983, which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
Since the enactment of the Attorney’s Fees Act of 1976, 42 U.S.C. § 1988 (allowing successful litigants in § 1983 actions to recover their costs of litigation and their attorneys’ fees), tens of thousands of lawsuits have been filed in federal court against the law enforcement community. Actionable claims under the federal civil rights acts include, but are not limited to, the following: false arrests and detention, warrantless arrests, arrests made under a warrant, arrests under unconstitutional statutes and ordinances, malicious prosecution, abuse of process, retaliatory prosecution, excessive force and physical brutality, illegal search and seizures, denial of First Amendment rights, denial of Fifth Amendment rights, conspiracies to violate civil rights, and gross negligence amounting to deliberate indifference in the failure to train, supervise, and discipline police officers. Recoveries in these cases could include compensatory damages, punitive damages, and equitable relief. Police officers may also be liable for damages as a result of their intentional torts, as outlined above. Recoveries against the law enforcement community and the government entities that employ them (or private parties that act in conspiracy with them) have included settlements and verdicts in amounts up to $50 million (see Avery, supra). At least 19 cities across the United States have agreed to pay out a total of more than $80 million in settlements to protesters injured by police during 2020 racial justice protests. These protests against racism and police brutality were sparked by the murder of George Floyd by Minneapolis police officers on May 25, 2020. Experts believe that this figure is unprecedented and will rise further as many lawsuits are still being litigated (see Gloria Oladipo, US Cities to Pay Record $80m to People Injured in 2020 Racial Justice Protests, Guardian (May 25, 2023)).
In order to avoid claims for ineffective assistance of counsel and legal malpractice, any attorney involved in protest and riot cases must be aware of all the potential consequences for crossing the line (see Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court held that defense attorneys must inform non-citizen criminal defendants about the risk of deportation based on a conviction when they are deciding whether to plead guilty; see also Charles J. DiMare & Eleanor Southers, Adding Civil Disobedience Defense to Your Practice, GPSolo, May/June 2018, at 18). In other words, it is essential that attorneys involved in protest cases have a working understanding of the differences between protected freedom of speech and expression, protected freedom of assembly, and protected rights to petition the government for redress of grievances. Obviously, riots, violence, and insurrection are not protected by the First Amendment.
Violence, Rioting, and Criminal Activity During Protests
Taking action in order to create social change is at the heart of our constitutional democracy. However, protesters and other activists must be mindful of possible criminal prosecutions, civil lawsuits, administrative actions, and other resulting and collateral consequences of their involvement in protests that involve violence or destruction of property or that evolve into a riot or an insurrection.
Many violations of various criminal statutes may have little consequence in the context of most protests and demonstrations. Even mass arrests that involve hundreds or thousands of participants sometimes result in dismissal of all charges. Nevertheless, other actions could result in criminal convictions that may include misdemeanors or felonies with penalties, such as fines, probation, jail and long prison sentences, and many other collateral consequences. Depending on whether the jurisdiction is federal or state, commonly charged crimes include unlawful assembly, refusal to disperse, resisting an officer, giving false information to a police officer, disturbing the peace, disorderly conduct, trespassing, destruction of property, assault and battery on a public employee, assault and battery, and threats to commit a crime. State statutes of limitations could vary from one to ten years for misdemeanors and seven to 20 years (or no statute of limitations) for felonies (for more specific examples, see Richard A. Leiter, National Survey of State Laws 137 (8th ed. 2019)).
A summary review of the criminal prosecutions of some of the 2,000 people involved in storming the U.S. Capitol building on January 6, 2021, offers informative illustrations. Many of these participants engaged in the confrontation to obstruct the certification of the Electoral College vote and to prevent members of Congress from discharging their duties that govern the peaceful transfer of power. Many others assaulted, resisted, or impeded law enforcement officers or employees or destroyed or stole government property. As of September 2023, some 1,146 participants have been arrested, and more than 623 of them have received criminal sanctions (32 Months Since the Jan. 6 Attack on the Capitol, U.S. Dep’t of Just. (Sept. 6, 2023); this is the final update made prior to this article being finalized and is the source of all statistics that follow in this paragraph). Also, note that 113 people have been found guilty at trial, and 657 people have pleaded guilty for their role in the January 6 attack on the Capitol. Convictions for low-level misdemeanor offenses, such as unlawful assemblies, have resulted in penalties including fines, community service, and probation. Some 378 defendants convicted of more serious crimes have been sentenced to periods of incarceration. Additionally, 126 rioters have been sentenced to home detentions, and dozens of others have received prison sentences ranging from one month for a college student convicted of entering a restricted building to ten years for a former police officer and Marine who attacked the police with a metal flagpole and tackled another officer and pulled off his gas mask.
On September 5, 2023, Enrique Tarrio, the former leader of the extremist far-right group known as the Proud Boys, was sentenced to 22 years in prison for seditious conspiracy and other charges for his role in planning the insurrection. It should also be noted that Former President Donald Trump is also facing four felony charges for his role in the January 6 insurrection.
Some of the more serious convictions resulting from the January 6 insurrection involve seditious conspiracy. Per 18 U.S.C. § 2384, “[T]wo or more persons . . . [who] conspire to overthrow, put down . . . the Government of the United States . . . or by force to prevent, hinder, or delay the execution of any law . . . or by force to seize, take, or possess any property of the United States . . . shall be fined . . . or imprisoned for not more than twenty years or both.” Many of those convicted under this statute are currently awaiting sentencing.
Other federal crimes potentially committed on January 6, such as civil disorder, prohibit adversely affecting any federally protected function or obstructing any law enforcement officer from the performance of official duties. Such an offense may be punished by up to five years in prison. Those at the Capitol that day also might have violated the Federal Riot Act, 18 U.S.C., §§ 2101–02, which applies to anyone who travels interstate to incite, promote, or participate in a riot, including aiding and abetting. This crime is also punishable by up to five years in prison.
Convictions of federal laws for inciting, assisting, or engaging in any rebellion or insurrection against the United States could result in up to ten years in prison. Most federal crimes carry statutes of limitations ranging from five to 20 years, but for others involving capital offenses, death, or serious injury, or for acts of terrorism, there are no statutes of limitations (for more, see 650. Length of Limitations Period, Dep’t of Just. Archives (Jan. 22, 2020); Charles Doyle, Congr. Rsch. Serv., Statute of Limitation in Federal Criminal Cases: An Overview (Nov. 14, 2017)).
Civil Liability and Other Consequences of Actions During Protests
Protesters and those engaged in civil disobedience must also consider the possibility of civil liability when they cross the line and engage in unlawful activity. Liability for the following intentional torts is commonly recognized: assault and battery, defamation, false imprisonment, intentional infliction of emotional distress, interference with business relations, interference with contractual relations, conversion, trespass to chattels, trespass to land and buildings, malicious prosecution, and abuse of process.
Findings of liability (and case settlements) for any of these intentional torts could be very substantial. For an example where the First Amendment is not a defense, consider the $787.5 million settlement reached in April 2023 between Fox News and Dominion Voting Systems (a voting machine company) in a defamation case. This litigation was based on false claims made on Fox News about Dominion Voting Systems as part of the network’s coverage of the 2020 presidential election. In this case, Fox News claimed, as part of its defense, a First Amendment right of freedom of the press to make the unfounded false claims it said about Dominion. The court found that the statements made about Dominion by Fox News were false. Therefore, obviously, these false statements were not protected by the First Amendment.
Similarly, substantial damages may be awarded or agreed on as part of a negligence claim settlement when (1) there is an existence of a legal duty of care between a defendant and a plaintiff; (2) the defendant breached the duty of care by failing to exercise it; (3) the plaintiff suffered damages; and (4) the damages suffered are causally related to the breach. Whether or not there is an existence of a legal duty of care is usually a question for the court. Juries, as fact finders, usually decide whether the other three elements of a negligence claim, as stated above, are proved by a preponderance of the evidence. (For numerous other examples of negligent and intentional torts, see Timothy Zick, The Costs of Dissent: Protest and Civil Liabilities, 89 Geo. Wash. L. Rev. 233 (2021).)
In addition to criminal prosecutions and civil lawsuits, individuals involved in peaceful protests who cross the line to engage in riots, violence, and insurrection face many other collateral consequences. These include, but are not limited to, adverse effects in higher education, employment, immigration status, child custody, adoptions, the ability to work with children, welfare, travel to many countries, professional licensing, business licenses, driving licenses, voting rights, and the right to possess a firearm. These same consequences could also adversely affect individual members of the law enforcement community and their supervisors. (For further discussion, see A.B.A., Collateral Consequences of Criminal Convictions: Judicial Bench Book (2018).)
Exercising First Amendment rights by assembling peacefully with a group of people for a rally, march, boycott, sit-in, or picket line and expressing and publishing opinions are important components of our constitutional democracy. However, crossing the line into criminal activity, including riots, property destruction, violence, and insurrection, could have substantial adverse consequences of which people must be aware. Hopefully, this article will be a starting point for attorneys and educators to better understand the myriad possible consequences, both positive and negative, for those who decide to participate in these activities.