What are your rights at a protest? If you’re going out to protest the Trump administration’s deportation regime, Israel’s genocide in Gaza, or any other affront to justice, you should know your rights. We asked an attorney who has litigated First Amendment cases, Isabella Salomão Nascimento, for a rundown. She is an associate attorney in the media and entertainment group at Ballard Spahr LLP. Before joining Ballard, she was a staff attorney at the American Civil Liberties Union of Minnesota.

This interview has been lightly edited for length and clarity.

Protest Rights

Isabella Nascimento: We have a fundamental right in this country, and it’s rooted in the First Amendment to the Constitution that we have a right to protest, a right to speech, a right to bring grievances to our government. We have a long history of this in the United States through protest.

When going to a protest, consider if you are in a public space. If you are in what we call traditional public fora — things like streets and sidewalks — those are widely recognized as the traditional and historical areas in which we expect people to speak out and protest. Provided that things remain peaceful, you have a protected First Amendment right to lift your voice and use your voice to go out and protest in this country.

Now, where things get a little dicey is when you are protesting on government property, but it’s not open to the public. You don’t have the same rights unless the government has indicated that it is an open area to the public.

The other area that you don’t necessarily have rights to go onto and protest is on private property.

First Amendment rights are at their zenith when you’re on public property like sidewalks, roads, or other open to the public government areas. If otherwise, the right is a bit more curtailed.

What Can Get You Arrested

Isabella Nascimento: It’s difficult to draw a hard line between absolutely protected activity and absolutely not protected activity. If you think of the First Amendment on somewhat of a spectrum, we think of traditional peaceful protests — where folks are marching in the streets or marching on the sidewalks — as your quintessential one side of the spectrum that is a clearly protected First Amendment activity.

Something like lighting cars on fire or destroying property would not necessarily be protected, and would fall on the other side of the spectrum in which that action traditionally gets law enforcement involved.

Where things fall in between is more of a grayscale, and it really depends on the circumstances involved. For example, you have a protest, and for the most part, the gathering is peaceful and just involves speaking out and lifting voices. But where you have folks on the fringes throwing things at officers or at buildings or whatever it may be, the line is a little fuzzy on whether at that point officers should just be targeting those discrete actors and removing them from the situation versus whether they can declare the entire assembly unlawful — and issue a dispersal order. At that point, the First Amendment kind of has to relent to public safety issues.

It is not clear, and I think as a First Amendment advocate, as someone who has litigated these cases, generally we would say you have to go and target the quote unquote bad actors before you can shut down everybody else’s right to free speech and to protest. But courts don’t always necessarily agree, so it does get murky in those situations.

Attending a Protest: Safety Plan, What to Bring, and What to Consider Leaving at Home

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