Political rallies and protests: The First Amendment at work.

Presidential election years are symbolic and vitriolic. Not only do they illustrate the political process at work, but they serve to remind us that behind that cult of personality on stage is a Constitutional framework that individual represents and if elected, will be sworn to protect. The media is aflame with hand-wringing over the clashes of protesters and supporters at political rallies of Presidential candidate Donald Trump.[1] Even more interesting is the public reaction to the same. The First Amendment is used by Trump’s supporters, and Trump’s protestors, as a way to justify their behavior.  Can both sides be correct? Well, what does the First Amendment actually say?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

These are forty five of the most powerful words ever written.  In sum, this means that you have the right to speak out, to express yourself, and to assemble. The American Civil Liberties Union ably explains that “Free speech is for everyone. Young or old; anarchist or evangelical; pacifist or hawk; Mormon or Muslim; these rights apply to you. It doesn’t matter whether you’re a U.S. citizen, whether you’re of voting age, or whether you speak English. Free-speech rights are for everybody. Don’t let anyone tell you otherwise.”[2]

But, there are limits on these rights. For instance, you are not protected from arrest, prosecution, and/or potential civil liability, if you:

  • Communicate libel, slander or obscenity;
  • Direct or incite imminent lawless action that is likely to incite or produce such action;
  • Obstruct or harass others after they have informed you that they are not interested in your message, or
  • Demonstrate on private property without permission (unless you own or lease said property)[3]

Most importantly, one should remember that violence is not a form of protected speech.[4]  As Justice Holmes so eloquently stated almost a century ago “[t]he ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[5] In other words, you cannot take the moral high ground by force, just as you cannot convince others of a superior intellectual position with a fist.

All of us should be passionate about the political process at work, and the direction of our country.  The key is to understand the broad protections provided by the First Amendment, and its limitations, on the message that you are planning on either communicating or receiving.  If in your lawful exercise of those rights you find yourself afoul of the law, it is imperative, and ironic, that you immediately assert your rights to remain silent, and then for an attorney well versed in civil rights litigation.

— By Derek A. Jordan, Esq., Barnes Law

Derek A. Jordan is an associate attorney with Barnes Law, licensed to practice law in Tennessee.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] http://trumprallyviolence.com

[2] https://www.aclunc.org/our-work/know-your-rights/free-speech-protests-demonstrations

[3] Ibid.

[4] https://www.yahoo.com/politics/trump-pay-legal-fees-sucker-punch-protester-162717932.html

[5] http://www.firstamendmentcenter.org/holmes%E2%80%99-idea-marketplace-%E2%80%93-its-origins-legacy