Your Right to Protest

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You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or public parks. However, the government can impose “time, place and manner” restrictions on speech; for example, the government may require permits for large protests or prohibit unreasonably loud demonstrations that disturb others. These restrictions are generally permissible as long as they are reasonable and not based on content. The government cannot impose permit restrictions simply because it does not like the message of a certain speaker or group. If for example, you are planning a parade that involves closing down streets, a permit is almost always required. But a small march that stays on public sidewalks and obeys all traffic signals often does not require a permit. Make sure to inquire about city or county ordinances that regulate First Amendment activities. In the City of Phoenix, permits may be obtained from the city manager (City Manager Office, Phoenix City Hall, 200 W. Washington St 12th Floor, AZ 85003). However, policies vary by city, so be sure to check your local regulations in advance. Generally, you have the right to distribute literature, hold signs, and collect petition signatures while on sidewalks or in front of government buildings as long as you are not disrupting other people or government proceedings, forcing passersby to accept leaflets or causing traffic problems.

You have the right to set up tables on public sidewalks and solicit donations, as long as the walkway is not blocked. Check for municipal restrictions on setup times or booth locations. Drumming, dancing, singing, and chanting are all protected First Amendment activities. Street performers, mimes, or puppeteers also have the right to express themselves in public, subject to reasonable conditions. In order to put on an event involving a large group of people and the use of public facilities or amplified sound, you will need a permit. (Make sure to ask about noise ordinances and a noise ordinance waiver if necessary).

Limitations on Speech

  • The First Amendment does not protect speech that is combined with the violation of established laws such as trespassing or disobeying a lawful order by a police officer.
  • Although inflammatory speakers cannot be punished for merely arousing an audience or advocating a violation of the law, a speaker can be arrested for inciting imminent violence.
  • Also unprotected are malicious statements about public officials and obscene speech.

Limitations on Action

  • Demonstrators who engage in civil disobedience — peaceful, but unlawful, activities as a form of protest — are not protected under the First Amendment and can be arrested.
  • If you endanger others while protesting, you can be arrested. A protest that blocks vehicular or pedestrian traffic is illegal without a permit.
  • You do not have the right to block a building entrance or physically harass people. The general rule is that free speech activity cannot take place on private property, including malls, without the consent of the property owner. You do not have the right to remain on private property after being told to leave by the property owner.

Free Speech for Immigrants

  • Constitutional rights, including First Amendment protections, apply to all residents of the U.S. regardless of immigration status.
  • If you are not a permanent resident and get arrested while attending a protest, your arrest can have a negative impact on your application for residency. For example, a felony charge can lead to deportation even if you were engaging in activities that were protected by the First Amendment.
  • Immigrants who choose to engage in a protest, march or demonstration should carry with them the telephone numbers of friends and relatives, as well as the telephone numbers of an immigration attorney or an advocacy organization.

Free Speech for Immigrant Workers

  • Local, state, and federal governments are prohibited from restricting your rights to free speech under the First Amendment of the U.S. Constitution.
  • But, private employers don’t have to respect those free speech rights by law. For example, a private employer does not have to give you a day off to participate in a political protest during work hours.
  • Employees have the right to engage in political protest during non-working hours. In most cases, your employer cannot discipline you, fire you, or otherwise retaliate against you for the political activities you engage in on your free time.
  • If you take time off from work, that does not give your employer the right to ask you to re-verify your work authorization documents. An employer cannot single you out for document re-verification because you appear to be an immigrant or have participated in immigrant protests.
  • During regular work hours, request the necessary absence in advance. In Arizona, an employer may discharge you for an unexcused absence, but not because of your ethnicity or national origin.
  • Arizona is an at-will employment state, which means the term of service is left to the discretion of the employee and the employer. Under the at-will presumption, the employer or employee can terminate the employment relationship anytime and without cause.
  • Under Arizona law, unless the employee and employer have signed a written contract, the employment relationship will be presumed to be at-will. So, missing work or having an unexcused absence is generally a legitimate reason for your employer to fire you.
  • Collective bargaining agreements that cover unionized workers MAY provide better protections for workers engaged in political activity. However, many union contracts include a “no-strike” provision that prohibits union members from engaging in strikes. But, workers who are covered by a union collective bargain agreement have greater protections because an employer can only fire them for “just cause.”

Free Speech for Students

  • Students can generally organize peaceful protests at lunch, or before/after school.
  • Schools can limit student free speech rights to maintain appropriate discipline, as long as the restrictions are equally applied to everyone and don’t vary depending on the subject of the protest or the particular views of the students.
  • School officials can regulate on-campus speech that is disruptive, vulgar or obscene, slanderous or libelous; that advertises or promotes alcohol, tobacco or illegal drugs; or that incites violence.
  • But, school officials cannot censor something a student says or writes because they believe that it is in bad taste or expresses a political point against school policy.

Student Walkouts

  • Regular school attendance by a student of school age is required by state law and the administration can take corrective action against you for missing school, even if you miss school to participate in a political protest. Missing school to attend a political protest if it is an unexcused or unauthorized absence from school is considered truancy.
  • But, school officials cannot punish you for missing school to participate in political protest more harshly than they punish students for missing school for any other purpose.

Q. Can a student be suspended for walking out of school to attend a political protest?
Generally no. While suspension or expulsion may be imposed for excessive unexcused absences, they are not appropriate punishments for occasional absences.

Q. What does it meant to be “truant” and can I be punished for truancy?
Truancy is the unexcused absence from school, including any unauthorized absence from class, study hall, or mandatory activity during the school day.

  • It also includes any unexcused absence from any before or after school session that the student has been directed to attend.
  • It is unlawful for any child between six and sixteen years of age to fail to attend school during regular school hours. The punishment for truancy depends on the school district and school officials.
  • Disciplinary action can range from parental notification to suspension and expulsion.
  • It is important to note that students are entitled to certain notice and hearing procedures before the school can suspend or expel them.
  • If a long suspension is imposed, students and parents can request a formal hearing, which is conducted at the district level by an appointed hearing officer.

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For More Information Contact:

American Civil Liberties Union Foundation of Arizona
P.O. Box 17148
Phoenix, AZ 85011-0148
Tel: 602-650-1854
Fax: 602-650-1376

The American Civil Liberties Union is the nation’s premier guardian of liberty, working in the courts, legislatures, and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and laws of the United States. Special thanks to the Center for Human Rights & Constitutional Law for its support of this project. The national Immigrants’ Rights Project (IRP) of the ACLU contributed to this guide. Information on IRP is available at Special thanks to the National Day Laborer Organizing Network (NDLON) for contributing to this guide.