During protests at the Saint Louis Galleria this past weekend, 22 people were arrested; ultimately, seven were charged. The videos and images taken of the arrests have raised questions and pushed some St. Louis County Council members to call for an independent investigation into police conduct, while others have suggested that officers’ actions might have been justified, emphasizing that the protest occurred on private property.
In a statement, St. Louis County Police Chief Jon Belmar said, “Citizens have been allowed to exercise their First Amendment Rights; however, when those protests descend into criminal activity, law enforcement has no other chose but to intervene.”
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SLM spoke with Lewis Rice attorney Benjamin Lipman, who practices First Amendment law, to ask about general applications of First Amendment rights to free speech and assembly as well as under what conditions the government can curtail those rights.
(Note: This Q&A is not specific to ongoing protests, but rather a larger look at the legal nuances of the freedom to assemble.)
What can demonstrators legally do while protesting? There is a right to free speech and a right to assembly that’s a constitutional right. That right, like all constitutional rights, is not necessarily absolute. And therefore there are some situations in which the authorities can stop assembly or even speech. But because it’s a constitutional right, the authorities’ ability to stop the public from gathering in public and making their own comments is limited.
As long as people are in a public area—that is in which public gathering and communication is traditionally allowed—then their rights are very broad to be able to gather there and comment through speech or hold up signs or hand out pamphlets, or whatever it is they want to do.
The government can at reasonable time, place restrictions on where you are, and the government can do something if you’re interfering with other people’s rights.
You can’t get up and block people from walking. You can’t be out there with a loudspeaker at night if there are people trying to sleep. And obviously, if there is any violence, then the authorities have the right to come in and deal with the violence, which may even mean having to move people out of the way from where they want to be.
But short of that, they can’t tell you that you cannot be in a public place, and they can’t tell you that you can’t be in a public place commenting on public issues.
Can you discuss when the government can “at reasonable time, place restrictions,” as well as what those restrictions look like? If the place we’re talking about is already a public forum—that is, an area that is publicly owned and in which people have traditionally been allowed to gather and comment—then the government typically [doesn’t restrict], other than ensuring that you can’t be out there with a loudspeaker at night if there are people trying to sleep. It’s those kind of restrictions, where they make sure you’re not able to interfere with other people’s enjoyment of the area.
Blocking cars by walking in traffic, for instance, would fall into that category? Exactly. It gets a little different if you’re talking about a public sidewalk outside of somebody’s home. Although there’s a public sidewalk and there’s typically a right to be there, you don’t have a right to be there in a way that makes people hostages in their own homes. Generally, that’s not an issue if you’re in, say, a public square outside of a courthouse.
From a legal perspective, what actions could a protester take that might get them arrested? If they physically interfere with a police officer. Let’s say you start shoving them, or shoving other people. Any act of violence or physical intimidation. If you make threats to somebody where that threat is immediate and likely—you hold up your fist and threaten to hit them—that’s different than standing there and exhorting people to protest. Any sort of violence, any sort of physically interfering with others. If somebody’s driving by and you get angry and start pounding on their car, that’s the sort of thing that can be problematic. So any sort of physical confrontation.
Where it gets more difficult is if a police officer’s giving you a lawful order and you refuse to follow it. That raises the question of whether or not it’s a legal order.
The police officer can’t, if you’re not bothering anyone or interfering with anything, say, “You can’t be here”—assuming, again, we’re talking about a public place that is traditionally used for gatherings. The police officer doesn’t have the right to tell you to leave because he or she doesn’t like what you’re saying, if that were the case.
On the other hand, if they have a legitimate reason—like if they’re dealing with interfering with traffic or property damage or actual violence that they need to deal with—then they can certainly give you an order that allows them to deal with that sort of thing. And your failure to follow that order and interfering with the police officer can get you arrested.
In terms of the public-private space distinction, are all bets be off if a demonstrator moves from a public space into a privately owned office or building? Absolutely. When you’re talking about private property, the owner of the private property has a right to—with some limited exceptions—control their own property. If they don’t want you there, you can’t be there. If you decide to go into a nearby office building and start going into people’s offices, they can certainly tell you “no.” What we were talking about applies to dealing with the government when you’re on government, public property; the situation changes and the rules become different when you’re dealing on private property.
