Since 2017, 36 states have enacted legislation that restricts the right to protest on public streets and rights of way. Such legislation has taken on new life in the aftermath of growing civil rights protests and current Covid-19 vaccination mandates. However, such bills often wrongly conflate the right to engage in sometimes hyperbolic, discordant, or anger-inducing speech with conduct that injures, kills, or maims. The right to protest in the public streets and parks is baked into the very essence of our First Amendment freedoms of speech and assembly, and as these restrictions face challenges in the courts, they dissolve under the withering glare of First Amendment scrutiny.
Legislation that seeks to control the geography, the timing, or the method of speech and protest is constitutionally acceptable, as long as the legislation does not target the content of speech. In First Amendment jurisprudence, statutes enacted at non-speech related activities are called content-neutral. A statute or ordinance is content-neutral if (1) it is directed at behavior that is important to a government function and unrelated to the suppression of speech, (2) it is carefully calibrated to that government interest so that it is not overly broad and otherwise restricts or criminalizes speech that is protected, and (3) if it has a collateral effect on speech, there remain other available means of communicating the message.
For example, imagine a group of people who are fed up with sidewalk scooters and they decide to mount a protest. They choose jaywalking as their messaging tactic and proceed to cross in the middle of busy streets while shouting: “Hey, hey, ho, ho, sidewalk scooters have got to go!” Laws that prohibit jaywalking are, from a free speech perspective, content-neutral. They are designed to ensure the safety of pedestrians, so the protestors could still be fined for jaywalking. The protestors’ desire to transform the action of jaywalking…Read More
Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Twitter @LGreenky.