Time, Place, and Manner Restrictions on Peaceable Assembly
by Sue Basko
There seems to be a lot of confusion or misinformation in the Occupy movement about the First Amendment right to peaceable assembly and how that interacts with the right of local governments to place Time, Place, and Manner restrictions on those assemblies.
Time, Place, Manner. The local governments and their entities (States, municipalities, counties, parks, schools, universities, airports, public transportation, departments of natural resources, etc) can make rules that control the right to peaceably assemble in public places as long as the ordinance is narrowly tailored to achieve a compelling government interest. The law must be content neutral, not vague, and also leave some way for the people to get their message across.
Content Neutral. The laws must be content neutral. Content neutral means the rule applies to all groups, regardless of their message.
Not Vague. And the laws must not be vague. That means the law must state specifically to what categories it applies and how. To be non-vague, a law must be very specific. For example, a law cannot say “large groups” must get a permit; it must say, for example, “groups of 25 or more” must get a permit.
Public Property Only. Keep in mind, the First Amendment is between citizens and the government. Therefore, the right to peaceably assemble is on public property only. (There are a few exceptions to this, such as at POPS, which is explained below.)
Camping: Most municipalities disallow camping except in actual campsites. That’s because campers need things such as toilets, drinking water, showers, benches and tables, a turf or area on which to place a tent, fire pits, safety and security measures, etc. Therefore, almost no (or no) municipality allows camping on a street, sidewalk, plaza, or in a general-use park.
Due to a court case settlement meant to give the homeless some place to legally sleep, Los Angeles allows sleeping on the public sidewalk between 10 pm and 6 am. That is not exactly camping.
During the Occupy protests, some municipalities are granting special permission to the protesters to have tents and sleep in parks or plazas. This is not being allowed as “camping,” but as part of a protest that is being conducted as “occupying.” Because I am pro-Occupying, at least for limited time periods, I think it is wonderful that some towns and cities are cooperating. However, the damage being done to parks and plazas cannot be denied, since these spaces were not designed or constructed to accommodate the needs of tent residents, whether campers or protesters. Looking into the future, what happens when another, less popular and less desirable group decides it needs to protest by occupying the parks or plazas? Will their tents be allowed? I doubt it. And I think this will lead to lawsuits and lots of trouble.
The U.S. Supreme Court ruled in
Clark vs Community for Creative Nonviolence (1984) that sleeping in tents does not have to be allowed as part of protest. From the other viewpoint, if a municipality wants to allow sleeping in tents as part of a protest, they are free to do so, but they are setting a precedent of allowing this for one group, and thus for all such groups.
Masks: The famous mask of Guy Fawkes and
V is for Vendetta has been adopted by Anonymous and anyone cool, really. The mask is the 2011 equivalent of the 1969 hippie beads. However, some states or municipalities have laws against wearing masks in public. New York has a law prohibiting two or more people gathered wearing masks, unless they are holding a masquerade party. Lots of mask-wearers have been arrested at the Occupy Wall Street protests in New York. Check local laws.
Masks, Aggravated Assault. Some places have laws that turn an assault into an aggravated assault if the assailant is wearing a mask or something that conceals identity. "Assault" is a catch-all category that Illinois law defines as "he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery." "Battery" involves when someone has been physically touched/ harmed, such as by a person or an object. Illinois law lists many acts that turn an
assault into an
aggravated assault. Included among these is wearing a mask.
In other words, if you scare someone into thinking they may be physically harmed, while you are wearing a mask, it may be aggravated assault in some states.
Illinois Penal Code: 720 ILCS 5/12‑2. Sec. 12‑2. Aggravated assault. (4) Wears a hood, robe, or mask to conceal his or her identity.
Disorderly Conduct: States and municipalities have laws against disorderly conduct. Even if your protest is legal, any person’s actions maybe illegal if they are disorderly. In some places, such as Chicago, not following police directives to disperse is disorderly conduct.
Unlawful Assembly: California’s law, quoted below, is typical. An assembly is no longer peaceable or legal if it is done in a manner that is violent, boisterous, or tumultuous. When an assembly crosses this line will be open to wide personal interpretation. If people are shouting or running around, it would be easy to call an assembly boisterous or tumultuous. California courts have interpreted boisterous and tumultuous to mean that it may imminently turn violent.
California Penal Code Section 407. Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.
Flash Mobs: Flash mob protests are probably "unlawful assembly" wherever they happen, and even moreso if masks and running are involved. If what you are doing is likely to scare people or make them think a place is under attack, then you must know .. it is illegal. ("Flash mobs" here does not mean dancing flash mobs done for fun in public places.)
See: Flash Mob Protests.
Closing Time: In most municipalities, parks close at night. Some public plazas may close at night, if there is good reason for this, such as for safety or cleaning. Most public sidewalks are open all night. However, that brings us to sound.
Sound/ Noise: Most municipalities have restrictions on sound or noise out on the streets. Many places have laws that restrict the use of sound amplification systems. Check the law before you go using megaphones or an amplifier.
Where to Peaceably Assemble
Let's look at the different types of places that are present in most cities. First Amendment Peaceable Assembly rights apply differently in these different types of places.
Spaces in cities can be divided into basic categories:
1) Inside public buildings, such as City Halls, libraries, etc.
2) In the publicly-owned street. (as opposed to the public sidewalk)
3) on the publicly-owned sidewalk.
4) in a publicly-owned plaza that is open to the public.
5) in a publicly-owned park.
6) in a POPS – a privately-owned public place, which is a category that is created by zoning law in some municipalities where a developer builds a public space, such as a park or plaza, in exchange for being granted the right to build at higher density than normally allowed on that lot.
7) Privately-owned places to which the public is invited. This includes places such as shopping malls, wide sidewalks by stores, outdoor cafes, seating areas outside businesses, private parks, private trails, etc.
8) Privately-owned places to which the public is not invited. This includes places such as homes, yards, private college campuses, private schools, churches, medical facilities, offices.
9) Inside or on the grounds of a public college or public university.
10) Inside or on the grounds of a public high school.
11) Inside or on the grounds of a public grade school.
12) Publicly-owned airports.
13) Publicly-owned transportation facilities, such as publicly-owned bus depots and train stations, as well as on-board public buses and trains.
The types of laws regarding protests that usually apply in these types of places:
1) Inside public buildings, such as City Halls, libraries, etc.
Most municipalities do not allow protests inside public buildings. Protesters can attend City Council or other meetings that are open to the public, but they have to follow the rules that apply to everyone. That means being orderly and quiet, and signing in to speak and observing time limits. Signs may be prohibited inside a building or at a meeting, but the rule should be written and must apply to all. Many places prohibit the distribution of flyers or other materials in a library or public building.
2) In the publicly-owned street.
If you want to hold a protest that takes place in the street, vehicle traffic must be closed off. Cities always require a permit or approval process for this. Some cities also require insurance coverage for the event. Some cities bill for the cost of public services used. Many cities limit the length of time of such a protest with street closure to 2- 4 hours. Permits are granted or denied based on specific written criteria that must apply to all applicants regardless of their message. Keep in mind, however, that since the permit is for peaceable assembly, the groups ability and willingness to be peaceable counts.
3) on the publicly-owned sidewalk.
The public sidewalk is the MAIN place to hold protest marches. In most municipalities, you can protest on the public sidewalk without a permit. You cannot block others from using the sidewalk. That means you can take up about one-half the width of the sidewalk and must be courteous to others trying to use the sidewalk. You cannot step into the street or block traffic. In most places, you cannot sit or lie down on the sidewalk. Most places do not allow any items to be placed onto the sidewalk, such as tables, chairs, tents. Some bigger cities, such as Los Angeles, allow sleeping on the sidewalk during specific hours at night.
Most places prohibit any protests near medical facilities or churches. Many places have quiet zones, where no noise can be made near or in churches, schools, senior citizen homes, or other such places. The laws regarding protests near medical facilities are often very specific and meant to protect women seeking abortions from being harassed and endangered by protesters.
Most places have noise restrictions that limit or prohibit the use of sound amplification systems, such as public address systems, megaphones, or loudspeakers. Check the local ordinances on this. Most places also place limits on how much noise a performer can make and when. This applies if your protest has drummers, as most do. Also, most places even further restrict or prohibit any loud noise at all from the evening to the next morning. Check your local ordinances. A typical no noise at night law may go from about 8 pm till 9 am. Some places have greater noise restrictions on Sundays. It is crucial to read and know the local laws on this.
The right to protest outside of anyone’s house may be curtailed. That’s because harassment is NOT part of Free Speech. If what you are protesting is directly tied to the location, it might possibly be allowable. Each situation will be different based on the facts and local and state laws of the location. Be prepared to explain why you are protesting there.
Illinois Criminal Code 720ILCS 5/ Art.21.1) specifically prohibits "picketing" outside anyone's residence, other than outside your own. So in Illinois, it is illegal to "picket" outside a public official's home, because the home is respected as a sacrosanct refuge.
4) in a publicly-owned plaza that is open to the public.
These are usually plazas that are connected to a government building or on the town square. If a plaza has mostly stores or businesses on it, it is probably not a publicly-owned plaza - you need to check to see if it is part of a privately-owned shopping complex, for example. If you protest in a public plaza, you have to follow the same laws as everyone else using the plaza, such as closing time. Many public plazas prohibit sleeping or lying down. See the rules above for public sidewalks, because the same sorts of rules apply.
5) in a publicly-owned park.
Parks usually fall under a separate set of rules. Parks are often ruled by a separate department of a city. In some cities, such as New York, plazas are grouped with parks. Also, in some cities, certain parks have a special set of rules. In particular, different parks in the same city often have different closing times. You need to check the laws and rules before you plan to hold anything at any particular park. Many cities require a permit for any group over a certain size in the park. Most cities prohibit any camping in a park, unless the park is designed for camping. Some parks prohibit any tents at any time, or require a permit for any tent. Some parks prohibit sleeping in a park at any time. Most parks close at a certain stated time. Most parks prohibit the use of any sound amplification system without a permit. In other words, if you want to hold a protest in a park, you almost surely need to get a permit.
6) in a POPS – a privately-owned public place, which is a category that is created by zoning law in some municipalities where a developer builds a public space, such as a park or plaza, in exchange for being granted the right to build at higher density than normally allowed on that lot.
The rules regarding a POPS will depend on the provisions under which the POPS was created. If you want to hold a protest in a POPS, contact a lawyer to help you.
7) Privately-owned places to which the public is invited. This includes places such as shopping malls, wide sidewalks by stores, outdoor cafes, seating areas outside businesses, private parks, private trails, etc.
Generally, there are no peaceable assembly rights in these places. If a place is private but appears to be a public park, there may be some First Amendment rights. It all depends on the history and situation of the exact place. If you plan to do this, get help from a lawyer.
A private shopping mall has no First Amendment rights. However, in California and New Jersey and possibly a few other states, there may be free speech rights that arise, not out of the First Amendment of the U.S. Constitution, but rather out of provisions in the State constitutions. These State provisions are subject to revision or reinterpretation by the State courts. In California, for example, courts allow leafletting in private shopping malls to which the general public is invited. This right is subject to reasonable rules made by the malls.
Mall management in California has countered this situation by posting little signs at the mall entries stating that the mall is for use by patrons of the businesses in it and that trespassers are not allowed, with the intent of limiting the mall as a public forum. In other words, the general public is not invited. Malls in California also counter the "public forum" notion by programming their own space with events, such as music performances or appearances by authors, thus making their hallways and open areas into commerce areas.
Malls in California have also instituted their own permitting processes and their own time, place, and manner restrictions, as allowed under the court rulings that interpreted a right to some free speech in private shopping malls. This seems only logical, for if a private shopping mall is to be treated by the State of California as a free speech forum, then it follows that the mall has the right to impose its own reasonable time, place, and manner restrictions. California mall managers have been advised by lawyers to require leafletters to fill out an application in advance, and have them give names of all who will participate, provide copies of all materials and signs, to disallow any gory or inappropriate materials, to disallow any lights or sound amplification, to assign a time and location for the leafletting, to require insurance coverage and a fee.
In most states, in a private shopping mall, there are no First Amendment assembly rights, nor any similar rights conferred by the State Constitutions. (see notes just above about shopping malls in California.)
A privately-owned outdoor park or plaza that is open to the public might have some First Amendment rights. These laws develop and change over time. For a while in the past, any outdoor place that looked like a park and functioned as a park was considered "public," with First Amendment rights. Today, that view has changed. If you want to leaflet or hold a protest in any park or plaza, determine first if it is public or private. If it is private and you want to hold a protest there, please confer with a lawyer. You might also try calling the management of the place and asking. They might tell you of a permit or application process, or they might tell you it is off limits to free speech activity.
The best bet for a legal protest location is always the public sidewalk or a plaza adjacent to a major public government building.
8) Privately-owned places to which the public is not invited. This includes places such as homes, yards, private college campuses, private schools, churches, medical facilities, offices.
Private places do not have to allow any protest activity. At private college campuses, people often take the First Amendment activity to the public sidewalk on the perimeter of the campus. Some private colleges try to limit the First Amendment rights of their students on and off campus. Check the rules, check the laws, check with a lawyer or rights group. If you pay to attend a school that tries to restrict your basic rights off-campus, perhaps you should transfer to a different school?
Also, if you plan to protest on the public sidewalk near a church, school, or medical facility, you must check the State and Municipals laws. Some places have laws that restrict the hours and the manner in which such a protest may happen.
Illinois Criminal Code 720ILCS 5/ Art.21.1) specifically prohibits "picketing" outside anyone's residence, other than outside your own.
9) Inside or on the grounds of a public college or public university.
Public colleges and public universities are places where there are some free speech rights, but these are not unlimited. Universities are generally allowed to limit protest groups to students only and can consider non-students to be trespassers. Universities are also generally allowed to limit peaceable assembly protest to certain proscribed “free speech” areas in order to protect the State interest of providing orderly education. In many cases, these areas are too small or in inconvenient or undesirable locations where the protest will not be visible to the public. By my observation over the years, I would say that most student protests that get “out of hand” do so if the university administration is not respecting the First Amendment rights of the students, rather than from the administration failing to adequately contain the protests. The main problem most student protest leaders face is university discipline, where universities may attempt to expel or suspend them from school. If this sort of thing is happening to you, get help from a lawyer or rights group immediately. Let me repeat: Get help immediately because university "justice" systems are notoriously lacking in due process and even more lacking in unbiased decision-makers.
10) Inside or on the grounds of a public high school
Public high schools are allowed to be highly restricted places. In most cities, non-students are not allowed on the premises for any purpose, other than official school business . In most cases, no protests are allowed on the grounds of a public high school. If you can determine where the actual public sidewalk is that is on the perimeter of a public high school, you may be able to flyer or protest on that public sidewalk. However, you need to check the laws, because there may be a provision against making noise or causing a distraction or gathering for any purpose near a public high school, particularly during school hours or any time students are present. In any case, any protest must be held on the public way, not on school grounds.
You also need to check the school or district rules. I have seen a school rule at a Los Angeles public high school that prohibited the possession of flyers by a student, even in a locker or backpack. Believe it or not, the same school had a rule that prohibited a student from possessing a graffiti-style drawing, even inside a notebook. The school claimed the rules were needed to ensure an orderly education in a school that supposedly had a history of gang activity. ( "Gang" is the magic word. If a school or municipality claims a rule is in place to ward off gang activity, it can install almost any intrusion upon freedoms.)
11) Inside or on the grounds of a public grade school
Same as public high school, but with stricter controls still. If the protest is the parents protesting against budget cuts or some such thing, they should plan carefully to be at a time and location where they will not interfere with the learning process or distract the children or cause any danger or confusion that interferes with children’s’ safety. In any case, the protest must be held on the public way, not on school grounds. That means on the publicly-owned sidewalk out by the street.
12) Publicly-owned airports
Most municipalities give an airport administrator the right to control time, place, and manner restrictions on First Amendment activity within an airport. The airport may be divided into different zones, ranging from restricted to limited. For example, an airport may have specific spots where free speech activity may be conducted by a given person or small group for a limited amount of time during specific time slots. Check with the airport to find these rules. As for holding a major protest at an airport – that sounds like a good idea if you want to end out incommunicado in a hidden cell in the custody of Homeland Security. Try it and let me know how that works out for you.
13) Publicly-owned transportation facilities, such as publicly-owned bus depots and train stations, as well as on-board public buses and trains
See the rules above for airports, except they are more likely to call the local police or their own security force. You need to find and read the laws and rules. Messing with public transportation these days is likely to end in arrest or at the very least, getting kicked out. If you plan to protest in public transportation, check with a lawyer on the specifics of the exact place. If you want to contact the office of the station or transportation agency, they will tell you their policies.
