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March 2, 2017

1st Amendment rights: What you can & can’t do



“It’s clear today that we really do need to focus on free speech. It’s a central part of our nation; it’s something we are ahead of the rest of the world on and we want to keep it that way,” said Pamela W. Connelly, vice chancellor for Diversity and Inclusion, as a preface to a recent campus discussion on First Amendment rights.

Federal courts have held that the university is a traditional sphere of free expression fundamental to the functioning of our society.

“In higher education the courts value free speech to an extreme degree. They say it’s the lifeblood of academic freedom, that there’s no place that should have greater free speech rights more than on a college campus,” said Connelly.

At the same time, there’s tension because other laws require the educational environment to be free from discrimination and unlawful harassment. “It is really complex,” she said.

Attorneys Megan Block and Mike Healey, representing the Greater Pittsburgh Chapter of the American Civil Liberties Union (ACLU), offered their insights into free speech rights — and practical considerations for exercising them. Their talk, “Free Speech and Dissent in Today’s Political Climate,” held Feb. 20 at the University Club, was part of the Dietrich School of Arts and Sciences Open Door Project series.

“The first thing we look to is the law,” Block said, citing the First Amendment protections covering a broad range of speech, religious freedom and freedom of assembly.

“The way that I look at it, it’s an insurance policy against the federal government, or government in general. It’s the idea that we have protections against the government. There are some things the government can’t do to us,” she said.

Free speech is broadly construed to include criticisms, unpopular and controversial viewpoints, “as long as you’re not threatening to harm someone,” she said. “You’re not allowed to destroy property, threaten people or harm people.”

The First Amendment covers the right to hold signs and show up at rallies in public places, such as sidewalks and parks, as long as demonstrators aren’t blocking passage, she said.

“If you’re on the street in rush hour and cars can’t get by, there’s some question there,” she said.

“If you’re outside of a building, don’t block passage into a building,” Block added, advising that individuals move when told to do so by police. “You have a right to demonstrate; you don’t have a right to block,” she said.

Government authorities can impose reasonable “time, place and manner” conditions for demonstrations, Healey noted. “Most cities have permit requirements.”

For instance, permits may be required for an event in a public park — and the government may restrict how many such events can go on at once. However, they may not deny permits simply because an event may prompt counterdemonstrations.

Regarding marches, “Technically if you don’t have a permit, there’s not a strict First Amendment right to march down the street,” Healey said. However, in the case of recent rallies, the police “have decided it’s not worth trying to shut these demonstrations down.

Marches and sit-ins can be a powerful tool, “but if a police officer comes up and says you need to get out of the street, you should get out of the street,” Block said.

Police response varies. “It’s different in different cities,” Healey said, adding that it depends on the political climate and the nature of the demonstration.

Civil disobedience

“If you do something like this, make sure you’re part of a larger group — not just you and your friends. Do this with a larger organization that has support for you,” Block said.

They advised that demonstrators carry photo ID and nothing else, especially not medications or marijuana.

Typically when groups engage in civil disobedience, certain individuals agree to accept the consequences — “so no one who doesn’t expect to get arrested gets arrested,” Block said. They often will prepare in advance with training (provided by the ACLU and other groups) on nonviolence and on interacting with police.

Minors, individuals on probation or parole, and non-citizens should avoid being arrested as part of demonstrations or acts of civil disobedience, she cautioned.

What to do if you’re approached by police

Typically police will give warnings before making arrests. For citations on failure to disperse, warnings are required, Healey said.

Block advised that individuals avoid confrontation. “Don’t get in the police officer’s face,” she said. “Follow the orders. If a police officer says ‘I need you to leave,’ I wouldn’t say ‘I know my First Amendment rights. This is a public place,’” she said.

“You’re always going to lose the argument,” Healey added.

“You can say ‘F you’ to the officer — that’s actually protected. We don’t recommend that. It escalates the tension and you just don’t need to do it.”

Can I videotape the police?

Courts have held that you have the right to audio- and videotape police officers if they’re performing public duties in public areas, Healey said. However, obstructing justice or interfering with the officers’ duties is not protected.

“Cellphones and cameras have been a really useful tool for exposing police conduct; on the flip side, it’s made some of the police more professional. Many of the police chiefs like the body cams now and cameras,” he said, adding that in many public demonstrations, videos have been helpful in resolving disputes over what happened.

“It’s often a contentious issue. We still get occasional arrests,” he said. “If you’re doing it, sort of stand back,” he said. In addition, if an officer is upset at being recorded, “they often come, take the phones and delete stuff. Just a word of caution.”

Block noted that there are cellphone apps that can be used to quickly send video to the ACLU before handing over the phone.

Advice for non-citizens

Usually, if arrests are made, charges are minor — disorderly conduct, failure to disperse, Healey said. “Typically charges are dismissed in exchange for community service; records can be expunged.”

Not so for non-citizens, who should exercise particular caution when demonstrating, they said.

“Charges are very serious if you’re not a citizen,” he said. While non-citizens enjoy First Amendment rights, arrests — even on civil charges — may affect their immigration status or their ability to become naturalized citizens.

Said Healey: “Don’t risk arrest even while doing peaceful civil disobedience because it could affect your immigration status.”

Healey added that draft immigration policies under the new federal administration include a broad definition of what is considered criminal behavior — including civil violations.

Block advised that if police arrive at a demonstration or rally and begin making arrests, “You probably should just leave.”

—Kimberly K. Barlow

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