A protester's guide to protesters' rights

Throughout the summer, hundreds of thousands of people nationwide protested the police killings of Black people like George Floyd and Breonna Taylor. These uprisings followed in a much longer legacy of people using protest as one form of action against oppressive structures. If you aren't involved in protests already, some of these actions may be intimidating to join. But if you know your rights at a protest, you'll have an easier time figuring out what you're comfortable participating in.

Some actions at protests can technically be illegal — and that's fine. For example, three activists were put on trial for trespassing after they, along with six others, formed a human chain to block entrances to the immigration court in Louisville, Kentucky. However, the point of a protest is often to highlight the hypocrisies and failures of American law. After all, the law itself isn't perfect or neutral — I mean, it's the easiest example, but remember slavery was once legal — so many people are comfortable breaking the law today when they feel it's necessary.

But, it's still important to know what legal rights you are guaranteed at protests. That way, you can make an informed decision to determine if you are able to take place in actions that may result in your arrest. In addition, knowing your rights at a protest means that you are able to document when those rights are being violated by police or other forms of law enforcement.

What the First Amendment says — and what it doesn't

Once protests come up, people often point to the First Amendment, which guarantees the freedom of assembly and speech. While it's true that the First Amendment means government officials aren't supposed to stop protests just because they disagree with the message, recent events have once again shown that the First Amendment can be applied differently in real time.

You will see different levels of police response at different events.

Take the Capitol insurrection, which began as a rally outside. That rally — before anyone stormed a federal building — would be protected under the First Amendment. But many also pointed out the glaring differences between how police reacted to former President Donald Trump's supporters and how they reacted to those standing in defense of Black lives last summer. Even when Trump's supporters eventually stormed Capitol Hill, there was a notable difference in how police rallied and responded: In D.C., there were reports and videos of Capitol police officers removing barricades so Trump's mob could enter the grounds, but footage from the social justice protests across the country last year showed police driving their vehicles into protesters, assaulting them with tear gas, and violently arresting them.

So yes, under the First Amendment, you have the legal right to gather. But you will see different levels of police response at different events. In addition, the government can impose restrictions on gatherings; police can order you to disperse so long as they give you notice and time to do so. I've been to my fair share of protests and can say that usually looks like police giving three warnings before they begin arrests.

Cities can also implement curfews, which became a popular method to stifle protests following Floyd's killing. The American Civil Liberties Union filed a lawsuit against Los Angeles County's use of curfews, calling the restrictions unconstitutional.

Rights around photo and video documentation

In this day and age, it is incredibly easy to document protests. Most people have smartphones that can take pictures and record videos. However, you'll want to be aware of not only how to keep your phone secure (surveillance is real, people), but of what specific rights you have to document incidents so you cannot be intimidated by any officials who don't want to be caught on camera doing something suspect.

Once again, the First Amendment is relevant because it gives you the right to record the police. However, the Electronic Frontier Foundation noted that most federal appellate courts who've upheld this right limit it to recording the police when they're exercising their official duties in public. In other words, if a cop is off duty or in a private space, your right to record them may be a little more tenuous. You should also know that different states may have their own rules about audio recording.

Because the Supreme Court hasn't taken up the matter of recording police or government officials specifically, you should do research about what rules exist in your particular jurisdiction. See what local court rulings have been made, and how police or other officials have treated documentation at similar protests.

Even still, having the legal right to do something doesn't mean that you won't encounter pushback from the people you're recording. For example, police may demand your phone — though, legally, you don't have to hand it over.

What about counter-protesters?

Counter-protesters show up to protest a protest. Sometimes, they're needed, like when people mobilize to counter anti-abortion groups. However, counter-protesters are a lot less cool when they're people showing up to promote hate at other events. So, how are you allowed to respond to them?

First, you have to recognize that they're given the same rights to protest as you. That means, technically, that the white supremacist who shows up at the next rally for Black lives has a legal right to be there.

Now, that doesn't mean you as an individual have to accept them. You are free to document them if they are in a public place. But despite its popularity as a meme, punching Nazis can be illegal in some cases. It doesn't mean you'd be a bad person for doing it — but you should just be aware of how to legally punch a Nazi.

What if my rights have been violated?

All right, you know your rights. But if you've been paying attention, you also know that having a legal right doesn't necessarily mean it will be upheld. What do you do if your rights are violated?

You should try to write down everything that you can. The ACLU recommends taking down any involved officer's badge number and patrol car number, as well as noting which agency they work for and any other available information. If there's video evidence, get it and save it. If there are witnesses, you'll want their contact information. If you have injuries, photograph them. All of this information can be used to file official complains with internal affairs divisions or civilian complaint boards, or even put together a lawsuit of your own.