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The Right to Protest: When is Protesting Illegal?

Mark Mandell, Esq.

Since November 9th, protestors have flooded the country after outrage of the election of businessman turned politician, Donald Trump. These protests have taken place in major cities throughout the United States including Portland, Los Angeles, and Chicago, as well as college towns like Ann Arbor. Protestors have made it very clear to the media that they are not going to halt their demonstrations until change is made, some saying that they are willing to protest for Trump's entire four-year term.

The ability to protest, like in these instances, is protected by the First Amendment right to freedom of speech. But what most people don't understand is that, despite each individual's right to free speech and right to participate in demonstrations, there are many instances where protestors can still be found guilty of a crime.

First off, protests are only allowed in public forums. Such forums consist of places such as parks, sidewalks, and streets. Again, just because you are protesting in a public forum, it does not guarantee that you are doing so legally. The Constitution does not protect civil disobedience that involves purposely violating a law to make a point. One example is blocking traffic. Although streets are public forums and protesting is legal there, the act of blocking traffic is illegal and could lead to arrest.

On top of this, government officials, although they don't have the right to control what the protest is about, have the right to place "reasonable" time, place, and manner restrictions on protest activities in public forums. If you are to violate these restrictions, you face the possibility of arrest or punishment.

Disorderly persons and rioting/unlawful assembly are two legal issues that come into play with regards to protesting. In Michigan, a disorderly person charge may be brought for jostling or crowding other in a public place, or engaging in indecent or obscene conduct. Indecent and obscene conduct can be very subjective to the officer and include things like hate speech; speech that attacks a person or group based on factors like race, religion, disability, or sexual orientation.

Rioting or unlawful assembly can also be a factor in protesting rights. These charges exist when four or more people gather with the purpose of inciting riotous behavior OR to be present at a place where such a riot develops. If a large protest begins to become violence, even if it is just true threats or violent dialogue, it is best for an individual to remove themselves from the demonstration or risk a felony charge.

The State of Michigan has many other criminal codes that could come into play with regards to protests including disturbing a lawful meeting, trespassing, and malicious destruction of property.

As Americans, we are granted the right to protest and voice our opinions about perceived injustice. Despite this right, it is important that individuals know the limitations to their freedoms, whether they engage in demonstrations now or in the future.

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