🕊️ The Right to Peaceful Protest: What the First Amendment Protects
A nonpartisan explainer on our rights, government limits, and the meaning of protest in a constitutional democracy.
Curated by Engage for Democracy | June 12, 2025 (Updated June 13, 2025)
✏️ Editor’s Note
In times of civic unrest or political division, the right to protest becomes both more important and more vulnerable. The First Amendment guarantees every American the right to peaceably assemble and petition the government for change—no matter how inconvenient, unpopular, or uncomfortable that protest may be.
This explainer breaks down what protest rights are protected, what can be regulated, and what is not protected under the Constitution. It also outlines how courts have drawn these lines and what public officials—including law enforcement—can and cannot do in response to public demonstrations.
This is the second in a three-part explainer series on constitutional authority and limits. The final installment will focus on presidential powers and the deployment of military or federal force on U.S. soil.
🔗 Link to the first explainer: The Role of ICE and the Limits of Civil Enforcement Authority
📜 The Right to Protest and the First Amendment
The First Amendment to the U.S. Constitution guarantees the right "of the people peaceably to assemble, and to petition the Government for a redress of grievances."
🎯 Key Takeaway: The Rights of the People
The Constitution protects peaceful protest—even when it is loud, unpopular, or critical of the government. You have the right to express your views in public spaces, but that right has specific boundaries.
✅ What's Protected
The First Amendment to the U.S. Constitution guarantees the right "of the people peaceably to assemble, and to petition the Government for a redress of grievances."[1] This includes:
Peaceful protest in public spaces like streets, sidewalks, and parks
Marches, rallies, vigils, and demonstrations—even those critical of the government[2]
Signs, chants, and expressive conduct that do not incite violence[3]
The right to record public officials, including police, in public spaces[4]
Speech that challenges prevailing social, political, or governmental views or norms
❌ What's Not Protected
While First Amendment Rights are at the core of our civil rights as Americans, certain actions fall outside First Amendment protections, including:[6]
Incitement to imminent lawless action
True threats or targeted harassment[9]
Obstruction of essential services (e.g., hospitals)
Trespassing on private property
Violence or property destruction
📰 Real-World Reminder: Protest ≠ Violence
In the wake of recent events, public officials have reaffirmed the critical difference between peaceful protest and criminal conduct. On June 8, 2025, LAPD Chief Jim McDonnell said:
"When I look at people out there doing the violence, that's not the people that we see during the day who are legitimately out there exercising their first amendment rights and to be able to express their feelings about the immigration enforcement issue."[8]
This is a vital distinction. The Constitution protects peaceful protest. It does not protect violence. But the actions of a few cannot be used to suppress the rights of the many.
🛡️ What the Government Can and Cannot Do
🏛️ Key Takeaway: Government Authority
The government can impose reasonable restrictions on protests (like time, place, and manner rules), but these restrictions must be content-neutral (applies equally regardless of the message), narrowly tailored, and leave ample alternatives for communication. Crucially, authorities cannot retaliate based on viewpoint, use excessive force, or selectively enforce rules to silence specific messages.
✅ What They Can Do
Governments may regulate protests through reasonable time, place, and manner restrictions, but only if the following conditions are met:[5]
The restriction is content-neutral (applies equally regardless of the message)
It is narrowly tailored to serve a significant government interest (e.g., public safety)
It leaves open ample alternative channels for communication
Explainer: What Does Content-Neutral Mean?
A regulation is content-neutral when it applies equally to all messages, regardless of what speakers are saying or their viewpoint.
Examples:
✅ Content-neutral (allowed):
"No amplified sound after 10 PM in any city park"
"Protests limited to 50 people on the courthouse steps"
"No signs larger than 4 feet by 6 feet"
❌ Content-based (not allowed):
"No anti-government messages after 10 PM"
"Pro-life protests limited to 50 people, but other protests can be larger"
"No signs criticizing the mayor larger than 2 feet by 2 feet"
❌ What They Cannot Do
Authorities may not:[7]
Retaliate against protest based on viewpoint
Arrest peaceful protesters without lawful cause
Use excessive force against nonviolent demonstrators
Enforce vague or uneven protest restrictions
Require permits in ways that target or suppress specific views
The key question: Is the government targeting the message (not allowed) or regulating something unrelated to the message (like noise, crowd size, or traffic flow) which is allowed?
⚖️ Landmark Cases That Define the Right to Protest
📚 Edwards v. South Carolina (1963)
A group of peaceful Black student protesters marched to the South Carolina State House to speak out against racial segregation. Although their demonstration was nonviolent and orderly, they were arrested for "breach of the peace."
The Supreme Court ruled in favor of the students, holding that the state violated their First and Fourteenth Amendment rights by punishing them for peacefully expressing dissent.
🧭 Why it matters: The Court affirmed that peaceful protest—even if unpopular—is protected by the Constitution. Governments cannot use vague public order laws to silence dissent, especially when that dissent targets racial injustice.
⚖️ Brandenburg v. Ohio (1969)
Clarence Brandenburg, a Ku Klux Klan leader, gave a speech at a rally that included vague threats of "revengeance" against the government and references to possible violence. He was convicted under Ohio's criminal syndicalism law, which criminalized advocacy of unlawful methods of political reform.
The Supreme Court overturned the conviction and set the modern standard for incitement, holding that speech is protected unless it is:
Directed to inciting or producing imminent lawless action, and
Likely to incite or produce such action.
🧭 Why it matters: The ruling created a high threshold for criminalizing speech, ensuring that even deeply offensive expression is protected unless it presents a real, immediate threat of violence. It affirmed that the government may not silence speech simply because it is hateful, controversial, or unsettling.
In our democracy, the same constitutional framework that protects peaceful calls for justice also shields unpopular speech—ensuring that rights remain strong enough to protect everyone, especially when it matters most. Understanding these First Amendment protections empowers citizens to exercise their rights fully while holding government accountable to constitutional limits.
💡 The Constitutional Paradox
It is deeply painful that Edwards v. South Carolina arose because Black Americans had to fight just to protest for basic rights. And yet Brandenburg v. Ohio reminds us that the same First Amendment protections extend even to those who promote hate.
This is the burden—and the brilliance—of constitutional democracy: Rights must be principled, not partisan. They are designed to protect the rule of law, even when the people exercising those rights are hard to defend.
📘 What This Means in Plain Language
Here's what these constitutional principles mean for everyday citizens:
Peaceful protest is protected—even when it's loud, inconvenient, or politically unpopular
The government can place limits—but they must be fair, specific, and not about suppressing viewpoints
Law enforcement cannot retaliate against protest speech or apply vague laws to silence dissent
Protesters do not lose their rights because others act violently nearby
The First Amendment protects principled democracy, not partisan preference
📚 Footnotes
[1] U.S. Const. amend. I. https://constitution.congress.gov/constitution/amendment-1/
[2] Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983) (establishing that streets, sidewalks, and parks are "traditional public forums" with heightened First Amendment protection); Edwards v. South Carolina, 372 U.S. 229 (1963). https://supreme.justia.com/cases/federal/us/460/37/; https://supreme.justia.com/cases/federal/us/372/229/
[3] Brandenburg v. Ohio, 395 U.S. 444 (1969). https://supreme.justia.com/cases/federal/us/395/444/
[4] Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). https://caselaw.findlaw.com/court/us-1st-circuit/1578557.html
[5] Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984), https://supreme.justia.com/cases/federal/us/468/288/; Ward v. Rock Against Racism, 491 U.S. 781 (1989), https://supreme.justia.com/cases/federal/us/491/781/; Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45 (1983), https://supreme.justia.com/cases/federal/us/460/37/
[6] See also Brandenburg v. Ohio, 395 U.S. at 447. Ibid.
[7] Niemotko v. Maryland, 340 U.S. 268 (1951). https://supreme.justia.com/cases/federal/us/340/268/; Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015). https://law.justia.com/cases/federal/appellate-courts/ca6/13-1635/13-1635-2015-10-28.html
[8] Chief Jim McDonnell, LAPD Press Conference (June 8, 2025), partial transcript by author (13:12-14:02).
[9] Virginia v. Black, 538 U.S. 343 (2003) (holding that while states may ban cross burning intended to intimidate, they cannot presume intent from the act itself, as some cross burning may be symbolic expression rather than directed threats). https://supreme.justia.com/cases/federal/us/538/343/
Engage For Democracy explainers are curated through close analysis of primary legal documents and expert sources, with research and editorial support from OpenAI's ChatGPT and Anthropic's Claude. All findings are independently reviewed and documented with verifiable citations. Engage For Democracy is a nonpartisan civic education project committed to constitutional accountability, the rule of law, and democratic norms. While every effort has been made to ensure accuracy, any inadvertent errors are mine alone.
📣 Thank you for reading this explainer.
Next up: The Role, Authority, and Constitutional Limits of the President of the United States — a plain-language guide to what the Constitution permits, what it forbids, and why these limits matter more than ever.
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Engage For Democracy