Handy info from ACLU on the rights of street protesters

[eridani]

Street Speech: Your Rights in Washington to Parade, Picket, and Leaflet
April 24, 2006

"Wherever the title of streets and parks may apply, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions."

Justice Owen I. Roberts (Hague v. CIO, 1939)

Introduction

This pamphlet provides general information about your right to parade, picket, leaflet, circulate petitions and otherwise express your political beliefs in public. It describes the kinds of regulations on speech activities that the government may enforce and the kinds of restrictions which are not permitted by the United States and Washington constitutions.

A general pamphlet cannot cover every possible situation. If after reading this pamphlet you still have questions or concerns, call the American Civil Liberties Union of Washington (ACLU) for more information.

The Right of Free Speech

The right of free speech is guaranteed by the United States Constitution and the Washington state Constitution. The right of free speech protects more than the right to talk. It protects expression and communication of all sorts, including picketing, leafleting, marching to city hall, gathering signatures, or wearing an armband.

The Declaration of Rights in the Washington Constitution contains very strong language on this topic. Regarding freedom of speech, it says: "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." Regarding the right to petition and assemble in public, it says: "The right of petition and of the people peaceably to assemble for the common good shall never be abridged."1

Free speech protections apply not only to speech that the government considers to be truthful and valid, but also to speech that is unpopular, strange, or even hateful. Our nation's founders believed that the best protection against ideas society believes are wrong is to have a free exchange of opposing ideas, not to censor wrong ideas.

The right of free expression is not an absolute right to express ourselves at any time, in any place, in any manner. For example, we do not necessarily have a right to hold a large rally at midnight outside a hospital. While we may have the right to march in a parade or on a city street, we may not have the right to decide the exact time or route. The government has the authority to make reasonable restrictions on the time, place, and manner of certain speech activities if there is a compelling reason to do so.

On the other hand, the government cannot make regulations merely because it does not like the message of the speaker. If parades are permitted for Democrats and Republicans, they must be permitted for socialists or anarchists, too. If Catholics and Protestants can hand out literature on a street corner, so can Hare Krishnas.

The right to free speech belongs to all of us, popular or unpopular, rich or poor. The government can place reasonable restrictions on the manner in which we express ourselves but not on the message we express.

Free Speech Rights by Location

Whether a particular government regulation over speech is reasonable and serves a compelling interest depends a great deal on the location and medium of the speech. The following sections describe some of the legal rules that have developed for different kinds of forums for speech.

Traditional Public Forums: Streets, Sidewalks, and Parks

The U.S. Supreme Court has declared that public streets, sidewalks, and parks are "traditional" public forums2. These are places where society expects people to have the freedom to communicate with each other with the fewest possible government limitations. Generally speaking, the government can regulate the time, place, and manner of speech in a traditional public forum only to ensure that other peoples' rights to use the streets, sidewalks, and parks, are not disrupted.

Speeches

Generally, people are free to speak as they please on sidewalks. No permit is required even if a large crowd gathers. It is a good idea, however, to encourage those gathered to leave space for passersby.

The speaker is not responsible for the presence of hecklers or angry listeners. Their hostile actions do not make the speaker's speech illegal. The presence of hecklers or counter-demonstrators is not, by itself, enough to justify an order to disperse the crowd or arrest the speaker.

Picketing and Leafleting

Sidewalk picketing and handing out leaflets are perfectly permissible. Since they generally do not cause traffic problems, a permit is not required. A law requiring people to get a permit for such nondisruptive activity is likely to be unconstitutional3.

However, people picketing or leafleting must do so in an orderly fashion. They must not physically disrupt passersby or force them to accept the leaflets. Picketers are not required to keep moving but may remain in one place as long as they leave room on the sidewalk for others to pass.

Demonstrations and Rallies in Parks

Public parks are our most traditional public forums. Currently, state park regulations may require reservations or permits for large demonstrations and rallies or for the use of sound equipment. Apply for a permit from the city, county, or state parks department well in advance of the event. If your permit is denied, you must be told why and be provided an opportunity to appeal the denial.

The government may limit demonstrations of extremely long duration, if the regulations are designed to ensure that the park is not unduly monopolized or damaged. For example, the court approved of a National Park Service regulation prohibiting demonstrators from sleeping overnight in Lafayette Park across from the White House4. Late night demonstrations may also be curtailed if the park is closed to the public after a certain time.

Marches

A march or rally in a street that would stop or slow traffic is considered a parade and usually requires a permit. You should apply for a permit from the street or transportation department well in advance of the event. A march in the street without a permit may result in arrest for interference with traffic.

A march on the sidewalk is not a parade. No permit is required for a sidewalk march. Individuals may march as far as they like as long as they leave room on the sidewalk for passersby and obey traffic laws. Organizers of large sidewalk marches sometimes appoint marshals to help keep the march orderly.

Sound Equipment

A city may put limits on the volume of sound equipment (measured by decibel level) or limit the use of sound equipment to certain times or certain areas. The restrictions must relate to a substantial government concern such as traffic safety or community tranquility. Of course, the city cannot restrict the sound on the basis of the speaker's message. The city may require a use permit for sound equipment.

Sale of Literature and Buttons

The sale of religious and political literature and buttons is protected by the First Amendment, subject to reasonable time, place and manner restrictions5. For example, the government may restrict the sale of literature or buttons to areas where pedestrian traffic is not obstructed. A table can be used to sell or distribute books or buttons.

A direct request for money, unlike a sale, is more strictly regulated in order to prevent fraud. The law requires advance registration in certain instances6. If you seek to raise money for your group by asking for donations, check with the Secretary of State's office to determine whether you must register.

Government Buildings

Not every property owned by the government is a traditional public forum. For example, a government office building may keep out persons not conducting business there, so that employees are able to do their work. The degree of public access depends on the type of building and the history of past use at the particular building. In some circumstances, government property that is not a traditional public forum might have been designated as a type of limited public forum. Some of the more common locations for demonstrations inside government buildings are discussed below.

Post Offices and Other Federal Buildings

Free speech activities may ordinarily take place on the sidewalks, grounds, and other public areas of government buildings.7 Officials may restrict the times, locations, and manner of free speech activities as long as the restrictions are reasonable and do not unduly hamper the speech activities. In some instances, a use permit may be required. For example, permits are required for gatherings on federal property managed by the General Services Administration, such as the Federal Building in downtown Seattle8.

Demonstrators must not block entrances or interfere with the normal business of the government building. Check with the building manager or do some advance scouting of the site, so you know where your group should or should not stand.

The Supreme Court has ruled that no one has a right to protest on military bases even if the person is a member of the military. Most federal property, however, is less restricted. There are no regulations prohibiting free speech activities at post offices, except for partisan political activity. In addition, flyers or handbills cannot be posted on postal property. When a public building is used as a polling place, partisan activity and campaign signs may be required to be a certain distance away.

The U.S. Supreme Court ruled in 1983 that speech activities cannot be banned from the public sidewalks around the Supreme Court grounds.

Schools

Generally speaking, administrators may restrict access to public school property. However, if they open the school facilities to some nonstudents, they cannot keep others out because of their ideals. For example, a Louisiana school district adopted a policy allowing private organizations to use school facilities during nonschool hours. The Ku Klux Klan sued after its request to hold a meeting at one of the schools was refused. The court ruled that by opening its doors to some groups, the school district was obligated to leave them open to other groups9. In a similar situation in Boston, a school district that allowed a group to circulate anti-busing literature was required to let a pro-busing group circulate literature as well10.

In general school administrators do not allow nonstudents to distribute literature, hold rallies, or engage in any other form of expressive activity on school grounds. However, picketing or leafleting near school grounds (for example, the public sidewalk in front of the school) is constitutionally protected.

Airports, Train Stations and Ferry Terminals

People may exercise their free speech rights in the public areas of airports11. Nevertheless, airport officials may impose reasonable restrictions on the time, place, and manner in which the rights are exercised.

For example, speech activity may be prohibited where there is a captive audience or where it interferes with the normal use of the airport facility. Also, a temporary ban on speech may be justified in emergency situations, but the ban must last no longer than the emergency.

Officials may not impose regulations that are arbitrary or unreasonable. They may not require people to register in advance with airport officials for peaceful leafleting, picketing and communication. However, you may have to register in advance for large-scale activities, such as rallies, where the activity may be disruptive. You may also have to register in advance to ask for donations.

Shopping Malls and Other Private Commercial Property

Under federal law, private landowners historically have had the right to prevent anyone from speaking or demonstrating on their property. A person refusing to leave after being asked to do so could be prosecuted for trespassing. Although the U.S. Constitution may not grant us free speech rights at shopping malls12, some state constitutions do. In Washington, the state Supreme Court has determined that the Washington Constitution's protection of free speech does not apply to private shopping malls13. However, the ACLU participated in a case which established the right to gather initiative signatures in a shopping mall. The state Supreme Court held that individuals have a right to collect signatures in shopping malls under the state Constitution's initiative and referendum provision. Other types of activities, however, such as handing out leaflets, picketing, or giving speeches, are not protected.

People wishing to gather signatures for an initiative may still be required to get permission from mall management and to adhere to reasonable time, place, and manner regulations.

How to Obtain a Permit

Where permits or advance registration requirements are reasonable, such as with parades and large demonstrations, a filing fee may be required. The fee is to pay for administrative costs. It may not be unduly large, nor may it be a tax on speech. An insurance bond cannot be required. Permits may not be withheld because of the philosophy, political ideas, or message of the speakers. Lengthy advance notice requirements (anything more than a few days) may not hold up to a challenge in court.

For information on how to obtain a permit within city or county limits, contact the appropriate city or county clerk several days in advance of the event.

State parks are governed by the State Parks and Recreation Commission. Applications must be submitted along with a $10 nonrefundable fee. The Commission recommends that applications be submitted 15 days in advance of the proposed event to allow for verification and coordination with other jurisdictions, if necessary14. If you are denied a permit, you should be informed in writing of both the reasons why and the procedure to follow to appeal the decision.

Groups desiring access to a shopping mall should obtain an application form from the shopping mall management. Groups that are denied a permit for reasons that appear arbitrary or unfair should contact the ACLU.

Speech Not Protected by the Constitution

The Supreme Court has held that the Constitution does not protect all types of speech. For example, you may not directly incite a riot or encourage an angry mob to injure someone. You may not directly provoke someone into a fight, and you may face penalties for spreading falsehoods about someone or for distributing literature that the courts have declared to be "obscene."

It is sometimes difficult to distinguish between legal and illegal speech. It is legal to demonstrate against draft registration, but it is illegal to knowingly counsel an individual to evade registration. It is legal to picket a store, but it is illegal to block entry to the store. It is legal to preach that our form of government is wrong, but it may be illegal to directly encourage a crowd to storm the White House. Broadly speaking, we are free to communicate our ideas but not to encourage immediate crimes.

Demonstrators are encouraged to abide by reasonable rules. They should not harass passers-by or cause unreasonable disruptions. The use of legal observers, discussed below, is advised if demonstration organizers believe a confrontation is likely.

If you are instructed not to speak, demonstrate, or engage in some other free speech activity — whether by a law, a police officer, or other government official — you should know that continuing to engage in the activity may result in criminal charges. The police order may later be tossed out of court, but you would still have gone through the hassle of being charged. Please alert the ACLU if you believe an official order has unreasonably restricted your right to protest.

Failure to obey a police officer may result in arrest under one of the following criminal offenses:

Disorderly Conduct (RCW 9A.84.030)
Failure to Disperse (RCW 9A.8A4.020)
Resisting Arrest (RCW 9A.76.040)
Interference, obstruction of any court, building, or residence (RCW 9.27.015)
Trespass (RCW 9A.52.070; RCW 9A.52.080)
Disturbing school, school activities, or meetings (RCW 28A.87.060)

Endnotes

1. Washington Constitution, Article I, sections 4 and 5.
2. Hague v. CIO; 307 U.S. 496 (1939).
3. Lovell v. Griffin; 303 U.S. 444 (1938).
4. Clark v. Community for Creative Non-Violence; 468 U.S., 82 L Ed 2d 221 (1984).
5. Jamison v. Texas; 318 U.S. 413 (1943).
6. Shaumburg v. Citizens for Better Government; 444 U.S. 620 (1980).
7. U.S. v. Grace; 461 U.S. 171(1983). A Washington statute, RCW 9.27.015, makes it unlawful to protest outside a building where state court is being held. This statute is presumably unconstitutional after Grace.
8. 41 C.F.R. 102-74.460 et seq.
9. Knights of the KKK, Realm of Louisiana v. East Baton Rouge Parish School Board; 578 F. 2d 1122 (5th Cir. 1978).
10. Bonner-Lyons v. School Committee of the City of Boston; 480 F. 2d 442 (1st Cir. 1973).
11. City of Chicago v. Chicago Military Project; 508 F. 2d 921 (7th Cir. 1975).
12. Pruneyard Shopping Center v. Robins, 444 U.S. 74 (1980).
13. Southcenter v. NDCP, 113 Wn 2d 413 (1989).
14. See WAC 352-32-165.


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