Protest Arrests: When Free Speech Becomes Disorderly Conduct

By Stephanie Rabiner, Esq. on September 07, 2011 | Last updated on March 21, 2019

'Tis the season to earn yourself a protest arrest.

Well, at least if you happen to be Daryl Hannah, Mayor Vincent Gray of the District of Columbia, or an ad-hoc member of hacktivist group Anonymous living in the San Francisco Bay Area.

But such incidents are actually nothing new--even if there is a constitutionally guaranteed right to assembly.

What gives?

Protest arrests exist because your constitutional right to free speech is not absolute.

Even in the most traditional of public forums, your right to assemble may be limited by reasonable time, place and manner restrictions so long as they are viewpoint neutral and narrowly drawn.

These restrictions, generally propagated to ensure safety, often take the form of permits; protest-free zones; designated protest zones; hour restrictions; noise limitations; and signpost bans.

When protesters fail to remain in the designated protest area, they can be cited for trespassing and/or impeding the flow of traffic.

When protesters violate noise ordinances, time restrictions, or assemble without a permit, they may be cited for disturbing the peace.

When protestors act in an unruly manner or impede sidewalks, they may be cited for disorderly conduct.

But when protesters fail to follow orders given by law enforcement, they almost always earn themselves a protest arrest.

Regardless of whether you like the outcome, for decades these sorts of laws and limitations have been approved by the courts. As such, they are enforceable statutes, meaning that a protest arrest based on their violation is wholly within the law.

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