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YOURSELF! 
How to use your First Amendment Rights by Kevin Aplin How to use your First Amendment Rights "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there of, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition for a redress of grievances. " 1st Amendment to the US Constitution Over the years the courts have interpreted the First Amendment and have assigned different levels of protection to different kinds of speech. Non commercial political speech and petitioning is afforded the highest protection of any form of speech. The most important factors in determining your right to exercise free speech are:
Do not carry anything illegal on you while petitioning or protesting in public. Check your pockets and wallet before you arrive at your location. If you are Harassed or even arrested by law enforcement your issue remains one of pure speech and the case in easily be disposed of. Different locations receive different levels of protection from the courts regarding free speech activities. Some locations, like outside of courthouses, have been traditionally set aside as public forums Other traditional public forums include outside government facilities, all public sidewalks and most public parks. The Government has reserved the right to regulate free speech in what is known as reasonable time, place and manner, i.e. screaming on a megaphone at 4:20 in the morning in a residential neighborhood would probably violate all three standards. Do not rely on law enforcement or administrators to define what activities are permitted at particular locations find out for yourself. The content of your speech is irrelevant in determining reasonable time, place and manner. Do you need a permit to engage in free speech? Many types of speech activities do not require a permit. When they are required, the permitting scheme must be content neutral, must not be cost prohibitive and must be granted promptly. Types of speech that generally do not require permits are handing out of literature, petitioning, holding a sign or talking on a soapbox in any public area. Any citizen has a right to hand out literature and collect petitions outside a government building. When choosing the location be sure not to obstruct any entrances, exits, walkways, fire hydrants. You may approach any member of the public to ask them to sign a petition or take a pamphlet, be sure not to threaten or harass anyone that disagrees with you or refuses to sign. Festivals, Parades, Demonstrations and Amplified sound In order to put on an event that involves utilizing public facilities a permit is usually required. When a large group of people wants to gather and use amplified sound and reserve a particular location like a band shell in a city, county or state park, the government has the right to set up a permitting process. This process is limited in what it can require of the applicant and must be constitutional. The primary purpose of the application process should be to make sure that two or more groups are not scheduled to use the same space at the same time. Provided the event is not charging admission or restricting attendance and is not selling alcohol, there is very little the government can require of you to use public facilities. Amplified sound, a megaphone or a public address system, that exceeds the local noise ordinance is not always guaranteed by the first amendment. Noise ordinances are often vague and unconstitutional. Waivers to the noise ordinance are routinely granted for special events upon request. In the case of a megaphone outside a government building, police will often say you are disrupting the proceedings inside; send someone inside to see if this is true. If Police say you are exceeding the decibel limit ask to see the meter readings. If you are planning a parade that involves closing down streets a permit is almost always required, however a march that stays on public sidewalks and obeys all traffic signals often does not. When receiving any permit application always ask for a copy of the corresponding ordinances that authorize the application. Spontaneous Demonstrations *The State Police in a raid on a Monday night kill an accused marijuana grower, and you and a group of citizens wish to demonstrate the following morning at the State Police Headquarters and petition to have the Police Officers fired. Even if there are permitting procedures in place for demonstrations at Police HQ, they cannot be construed to prevent spontaneous protests. Notification to authorities on protests is a courtesy and not a constitutional requirement. As always take note of your local noise and traffic ordinances, unless your intent is nonviolent civil disobedience to provoke mass arrests. Attending Public Meetings and Proceedings Every citizen has a right to attend public proceedings and in most cases record and photograph the proceedings. This includes access to courtrooms, city and county council meetings and any session of the State Legislature. Around the State, judges, prosecutors and bailiffs have attempted to deny citizens access to courtrooms to witness or record proceedings. If this happens to you please follow the reporting procedures. Note: Flash photography during court proceedings is generally prohibited and it is a crime to secretly record anybody's private conversation. A Judge may also ban cameras from a proceeding often to protect the identity of informants. However; a citizen has aright to a hearing on why cameras or recorders are being excluded. Interactive Scenarios The remainder of this page is designed to encourage you to examine various situations that could occur, during a free speech exercise. Consider the responses you might give during each encounter and then refer to the latter part of the page for the Legal Support Network's recommendations. Scenario A Three of you are petitioning for medical marijuana outside your county courthouse, you are standing outside well clear of the doorways, you have a sign set up to the side that criticizes the police for arresting patients and you are handing out literature. A court bailiff approaches you and says "you can't do that here, you're going to have to leave." You should always politely respond saying "I have a first amendment right to talk to people on public property" The bailiff may say,
Scenario A Part Two You are continuing to petition, two deputies have arrived, along with a friend of yours with a video camera. By now you should have written down or memorized the bailiffs name. The deputies say,
Recording devices are always recommended when you are out doing free speech work. Don't count on the friend to just show up! Preplan your next encounter with Government officials by having an audio recorder and camera or better yet, a video or digital recorder on hand. Scenario B You and some friends have gathered at a city park. You have setup a table and a canopy on the grass at the edge of the major walkway inside the park. Your table is not blocking the pathway. On the table you have literature, petitions, voter registration cards and a donation jar, as well as books, bumper stickers and T-shirts all relating to the cause. The parkkeeper approaches and says:
The City Police arrive and say:
You are outside a Wal-Mart at the local mall, you are petitioning with a clipboard and handing out flyers, the Salvation Army is handing out information and collecting donations next to you. The store manager comes out and tells you to leave or they will call the police. What do you say? Scenario D You have set up a small card table containing literature and a donation jar on Main St. downtown next to a New York Times vending box. You are not blocking the sidewalk or obstructing a fire hydrant. You are taking up no more space than the newspaper box. The Police arrive and make the threats that we have discussed, what do you say? Scenario E You are outside a major sporting event or concert at your city stadium or arena, i.e. a football game or a Rolling Stones-concert. An administrator who says they represent the stadium says:
Scenario F You are petitioning at the Local bus, train station, airport or public transit area and are asked to leave. What will you do? Scenario G The Follow Up Now, let's suppose that after any of the above situations you have been sent to a government office to get a permit for your activity i.e. The Department of Parks, The County Clerk or the Police Department. You ask for the permit forms and corresponding ordinances relating to your activity. The bureaucrat you are dealing with says:
What to do if arrested during a free speech activity. If you are arrested during a free speech activity don't panic. The only information you have to give to the police is your name, address and date of birth. You might reiterate that you have a legal right under the first amendment to have engaged in your activity and that you believe this to be a false arrest and that you would like to contact legal services. Do not sign anything, say anything or consent to any searches until you have contacted CAN or your lawyer. Keep demanding your right to a phone call until you get it. If you have not been able to reach legal services before your first appearance, which may occur within 24 hrs. Ask the judge to appoint you a lawyer or to allow you to contact one. Always ask the Judge to release you on your own recognizance, if the judge won't, then ask that your bail be reduced. Emphasize that you want to show up in court to fight these charges. Answers and Explanations Scenario A. Always make sure that you or someone in your group is continuing to exercise your rights, do not stop passing out flyers while the authorities try to investigate.
Scenario A Part two It is a good idea for the most confident person to be the spokesperson but it is very important that everyone stays in earshot, do not let the police separate you.
If they agree to contact superiors continue your activity; if they don't and insist that you leave you have a decision to make. If you are sure of your rights, then an arrest is not a disaster; in fact, it can be very helpful to your cause in terms of publicity and civil damages that you may recover. If you are in a group it is best to select one person to continue the activity and take the arrest, make sure someone else has possession of that persons valuables like money, car and house keys. The rest of the group can then back down and act as witnesses to the police conduct during the arrest. Witnesses should immediately contact legal services in the event of an arrest. Taking only one arrest greatly reduces the time and expense of litigation. If you choose not to get arrested, tell the Police that you are leaving peacefully, but under duress. Get their names and instructions on how to complain and get a permit. Immediately write down an account of the events and report the incident to CAN. Scenario B
Scenario B Part Two
Scenario C Unfortunately, shopping malls are considered private property, so even though the Salvation Army are outside Wal-Mart, it is at the discretion of the Management to determine who gets to solicit. Your response in this case would be to ask management at the store for permission or politely explain you didn't understand the policy and leave. Remember your First Amendment rights to protest do not apply on private property, you must always ask permission. Many club owners are willing to let you set up tables on their property, so don't be shy. Scenario D Similar to the courthouse and the park, your greatest defense here is the news box. If the New York Times has the right to sell it's newspaper which contains both pure and commercial speech (they take advertising dollars). Your statement to Police could go something like this. "I believe I have an even greater right to be here than this NY Times box. I am not obstructing the regular flow of traffic and am taking up no more space than this box. I have aright to solicit contributions for my noncommercial newsletters. If you force me to leave my lawyers will insist that all news boxes also be removed from city streets". This normally works, again, if it doesn't please file a report. Scenario E Several questions must be asked when dealing with a large stadium. Stadiums that are built with some public money or are leased that day for a specific activity are considered limited public forums. Careful research is required to establish where the line between public and private property begins and ends. Always ask where to get documentation of who has jurisdiction of the area outside the stadium. A stadium may designate a particular area for free speech activities. You could spend weeks trying to find out what the policy is, showing up at the Stadium and being told to leave is a sure way to identify the enforcers and establish what the policy is, so it can be challenged later in court if necessary. Scenario F The courts have ruled that most public transit facilities are a public forum, but the government or management of those facilities has aright to designate a specific area for speech activities to take place. However if the designated area is so remote an area as to prevent anyone from receiving the message this can be challenged in court. Scenario G If you are told there is no permit required for your activity ask that they put that in writing. If they refuse ask who will put that in writing. The answer to all other responses from administrators is that you would like to see the policies and ordinances in writing. If they are uncooperative remind them of the Freedom of Information Act that requires the government to allow you to inspect and photocopy such documents. If they still refuse to cooperate contact CAN. Checklist for 1st Amendment activities Know your location. Empty your pockets - don't carry anything illegal. Be Firm, Polite, Calm and Consistent at all times. Smile and Good Luck Reporting incidences to your attorney Recording your encounters with law enforcement immediately helps keep the information clear later. When writing a report, always include the following information: Time, date and location of the encounter. Names and contact information of all witnesses. Name, title and department of all authorities involved. Write the details of the encounter in a short narrative: include any relevant details about the location or what led up to the incident. Details about the conduct of the authorities are very important. Quotes that can be substantiated with video or audio are always helpful. In the rare event that an arrest took place, also include the arresting agency, name of arresting officer, where the person is being held, amount of bail and time, date and location of next appearance. Reports should always, contain supporting paperwork when available. Supporting papers might include, ordinances, arrest reports, permit forms,copies of the literature being distributed. Each person directly involved should also write a separate statement. These statements may be used later if litigation becomes necessary. |
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