Going Out to a Protest? Here's How Not to Get Arrested.

The Intercept

14 hours ago

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.
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.
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.
Isabella Nascimento: I definitely recommend sticking with a buddy, having somebody that you're going out there with. That way if something happens to you or if you are arrested, someone else is aware that you were there and they can reach out to someone for help on your behalf.
Be mindful of what you are going to wear. Are you going to want to wear something that is really distinctive and calls attention to yourself and can make you easily identifiable in a crowd? Or do you want to wear something that blends in more so that you're not necessarily the one that they pluck out, for example?
I would definitely go and in indelible ink — or Sharpie, whatever it may be — write down key numbers in case you get arrested, in case they take your stuff, your phone, whatever it may be. If you don't have those numbers memorized, you want them on your arm or somewhere else on you so that if you need to make a phone call later, you have those contacts available to you.
Related to that, figure out what you actually want to bring with you to a protest. If you have stuff that is on you and you are arrested, law enforcement will probably seize it and inventory it.
Do you want to take an ID? Do you want to take your cellphone? Do you want to take a backpack? Do you want to take a camera, equipment, or whatever else that may be damaged or seized and you might not have access to it for a while?
If you are bringing some of these items, especially a cellphone, in today's day and age where we can open cellphones with our fingerprints or our faces, I recommend disabling those settings when you're going out to a protest. So that if you are arrested, law enforcement can't just hold up your phone or apply your thumbprint and be able to unlock and access everything that is in your phone. Even though they are not supposed to, I would definitely take precautions against that on the front end.
Isabella Nascimento: You have a right to be anywhere that the public is allowed to be, and you have a right to record anything anywhere that is publicly visible, open to the public, and where you have a right to be. So if you are standing on public property, you can record anything that is public around you in that area. That can include law enforcement. It can include fellow protesters. All of that is fair game. Every state and, in particular, every federal court that has considered the question so far about whether you can record law enforcement activity in public has concluded that there is a First Amendment right to that.
I'm not aware of any case in which they have found that you are not allowed to record what's happening in public, on public property. So, if you are going to record something while you are out in public, particularly at a protest, just make sure you're mindful of your surroundings and standing in an area that you're legally allowed to be.
Where things get trickier is where you are somewhere that might not be open to the public — in which case, you do want to be mindful of whether you are in a state, a location, for example, that has different recording laws like requirement for consent, a two-party consent state.
Some states are two-party or all-party consent states, where the other people that are part of the conversation have to agree that if you're recording, they know about it and they've agreed to it. Other states are one-party consent states. For example, New York is a one-party consent state. So as long as you agree that you can record the communication and the conversation that you're a part of, then that's fine.
Isabella Nascimento: There are a few things that you should avoid doing when you are going out to protest. Number one, anything that could be considered, for example, vandalism or destruction of property, you definitely want to avoid it to the extent that you want to maximize your First Amendment right to protest.
You also want to avoid interfering with an arrest. You have a right to record what is going on in public, and particularly law enforcement activity in public spaces. That being said, to the extent that you are interfering with their ability to make the arrest because you are too close to them or you're getting in between them and the potential arrestee — that can open you up to arrest yourself for anything that could be considered, for example, obstruction, interference with legal or law enforcement activities.
Be mindful of what a lot of states deem 'disorderly conduct.' That can often be a catchall. It's often used as a hook for saying, 'Oh, well this person was out late at night,' or 'We got noise complaints,' or 'They were jaywalking and interfering with traffic,' or 'They were rousing the crowd and started tossing stuff at us or in our direction, even though we didn't get hit' — disorderly conduct. So that's a very typical charge that we see coming out of protest arrests.
Isabella Nascimento: This is a really tough question to know what rights undocumented individuals have to participate in protest. You have a First Amendment right to free speech. You can absolutely participate. It is not without risk.
If you go and you are arrested, particularly if you are arrested and undocumented, ICE could come and pick folks up. It is something that you want to be aware of. You still have a First Amendment right to go and to participate in that protest if you want to, but I would definitely say to the extent that you are either not a citizen, not a citizen yet — maybe a lawful permanent resident — I would definitely carry information on you and ideally in electronic form. I would also leave copies with folks that you trust who are not necessarily going to the protest, or someone who might be there at the protest with you so that if you are [detained] or arrested, they can show the authorities your documents and ID.
It is a really tough question. It's definitely going to be a very personal one. You have to make the decision: Is the right to speak out worth putting in jeopardy your safety and security in this country? And that's especially hard in this moment.
Isabella Nascimento: It's a little tricky about what the rights and obligations are when officers issue a dispersal order. Legally, a dispersal order has to actually be lawful in order to be effective. That being said, that's determined by a court of law down the road and hasn't been adjudicated at that moment. For safety purposes, the best practice is to disperse and to abide by officer instructions.
Unfortunately, dispersal orders are not always only given when they are lawful or when an assembly is deemed unlawful properly. So, it would be at personal risk if you wanted to stand firm and assert your First Amendment right and take that head-on right there and on the ground with those officers.
At the end of the day, personal safety is also really important. So the best thing I can recommend in that moment is to comply. But I totally understand why others would want to stand firm and plant themselves there and continue exercising their First Amendment rights.
With respect to the media, dispersal orders are a little different and tricky. In many areas of the country, there has not necessarily been any distinction between the rights of the press versus the rights of the public. So, if you are actively covering a protest and a dispersal order is issued and they say everyone in this area has to disperse, in many parts of the country, that dispersal is unfortunately going to apply to the media even though they weren't necessarily part of the assembly.
Interestingly in Minnesota, which is where I am, there was a preliminary injunction entered by a court here that recognized that a dispersal order issued to an assembly — as part of an unlawful assembly declaration — does not apply to the media. The media does not have to disperse, provided that they are identifiable as journalists. So it's important again to know where you are at — which geographic region you're in — and if you have questions, to reach out to a lawyer ahead of time who can help advise you on that.
Isabella Nascimento: When you are arrested, typically what will happen is they will search you and seize what you have on your person. If you have backpacks, cellphones, ID, whatever else, they will seize those at that time.
Generally that is done for two reasons. One is officer safety. They'll say that they are searching you so that they can make sure that you don't have anything on your person that could harm them. The second reason is to inventory your stuff. That way, when you are ultimately released, if you are released, they can give back everything that was in your possession.
So what are your rights in those moments? You have the right to remain silent. You have the right to request an attorney. I would definitely encourage folks to exercise those two rights.
If you are arrested, please don't try to talk your way out of it. I would exercise your right to remain silent, and I would tell them that you're only planning on talking to them with an attorney present and that you want an attorney.
'I would not offer any consent for them to search you, search your belongings, particularly if they ask for it.'
Once you are in custody, if they have your things and they want to go through your phone and go through your backpack — other than to check if you have a weapon or something that could hurt them — if they want to go into your things, particularly your cellphone, they need a search warrant. The only way that they could get around that is if you give them consent to search your stuff. They might ask for it, and they might ask for it in various tricky ways. You do not have an obligation to consent. You do not have to consent.
Do not offer your consent. I know that it is a natural inclination for people to want to be helpful in those moments, especially to show that you didn't do anything wrong. That is not to your benefit in that moment. I would not offer any consent for them to search you, search your belongings, particularly if they ask for it. That includes your vehicle. If they ask you, for example, to take you back to where your vehicle is, you do not have to do that.
All of our rights here in the U.S. flow from the First Amendment, from our ability to speak truth to power, to bring things to light, and to hold the government to account.
When that goes, we have to be worried that the rest of those constitutional rights and everything else in the Bill of Rights will go too. It is imperative that people are exercising and fighting for that First Amendment right. You have a right to go out to protest, to lift your voice, to hold your government accountable. And you should because we can preserve democracy provided that we can continue to fight for that First Amendment.