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How
to use your First Amendment Rights
by
Kevin Aplin
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition for a redress of grievances.” 1st Amendment to the US Constitution
Over the years the courts have interpreted the First Amendment and have assigned different levels of protection to different kinds of speech. Non commercial political speech and petitioning is afforded the highest protection of any form of speech. The most important factors in determining your right to exercise free speech are: The type of activity you will engage in. A Word of Caution, Do not carry anything illegal on you while petitioning or protesting in public! Make sure to check your pockets and wallet before you arrive at your location. If you are harassed or even arrested by law enforcement your issue remains one of pure speech and the case can usually be disposed of easily. Different locations receive different levels of protection from the courts regarding free speech activities. Some locations, like outside of courthouses, have been traditionally set aside as public forums. Other traditional public forums include outside government facilities, all public sidewalks and most public parks. The Government has reserved the right to regulate free speech in what is known as reasonable time, place and manner, i.e. screaming on a megaphone at 4:20 in the morning in a residential neighborhood would probably violate all three standards. Do not rely on law enforcement or administrators to define what activities are permitted at particular locations, find out for yourself. The content of your speech is irrelevant in determining reasonable time, place and manner. Any citizen has a right to hand out literature and collect petitions outside a government building. When choosing the location be sure not to obstruct any entrances, exits, walkways, fire hydrants. You may approach any member of the public to ask them to sign a petition or take a pamphlet, be sure not to threaten or harass anyone that disagrees with you or refuses to sign. Festivals, Parades, Demonstrations and Amplified sound In order to put on an event that involves utilizing public facilities a permit is usually required. When a large group of people wants to gather and use amplified sound and reserve a particular location like a bandshell in a city, county or state park, the government has the right to set up a permitting process. This process is limited in what it can require of the applicant and must be constitutional. The primary purpose of the application process should be to make sure that two or more groups are not scheduled to use the same space at the same time. Provided the event is not charging admission or restricting attendance and is not selling alcohol, there is very little the government can require of you to use public facilities. Amplified sound, a megaphone or a public address system, that exceeds the local noise ordinance is not always guaranteed by the first amendment. Noise ordinances are often vague and unconstitutional. Waivers to the noise ordinance are routinely granted for special events upon request. In the case of a megaphone outside a government building, police will often say you are disrupting the proceedings inside; send someone inside to see if this is true. If Police say you are exceeding the decibel limit ask to see the meter readings. If you are planning a parade that involves closing down streets a permit is almost always required, however a march that stays on public sidewalks and obeys all traffic signals often does not. When receiving any permit application always ask for a copy of the corresponding ordinances that authorize the application. Spontaneous Demonstrations *The State Police in a raid on a Monday night kill an accused marijuana grower, and you and a group of citizens wish to demonstrate the following morning at the State Police Headquarters and petition to have the Police Officers fired.* Even if there are permitting procedures in place for demonstrations at Police HQ, they cannot be construed to prevent spontaneous protests. Notification to authorities on protests is a courtesy and not a constitutional requirement. As always take note of your local noise and traffic ordinances, unless your intent is nonviolent civil disobedience to provoke mass arrests. Attending Public Meetings and Proceedings Every citizen has a right to attend public proceedings, and in most cases record and photograph the proceedings. This includes access to courtrooms, city and county council meetings and any session of the State Legislature. Around the State, judges, prosecutors and bailiffs have attempted to deny citizens access to courtrooms to witness or record proceedings. If this happens to you please follow the reporting procedures outlined in this Section and send them to Kevin Aplin president of FL CAN. Note: Flash photography during court proceedings is generally prohibited and it is a crime to secretly record anybody’s private conversation. A Judge may also ban cameras from a proceeding often to protect the identity of informants. However; a citizen has a right to a hearing on why cameras or recorders are being excluded. Scenario A Part One Three of you are petitioning for medical marijuana outside your county courthouse, you are standing outside well clear of the doorways, you have a sign set up to the side that criticizes the police for arresting patients and you are handing out literature. A court bailiff approaches you and says "you can’t do that here, you’re going to have to leave." You should always politely respond saying “I have a first amendment right to speak to people on public property" The bailiff may say,
Scenario A Part Two Scenario A has escalated and the bailiff has called the sheriff. You are continuing to petition, two deputies have arrived, along with a friend of yours with a video camera. By now you should have written down or memorized the bailiffs name. The deputies might say,
Recording devices are always recommended when you are out doing free speech work. Don’t count on the friend to just show up! Pre-plan your next encounter with Government officials by having an audio recorder and camera or better yet, a video or digital recorder on hand. See examples of Audio and Video Captures of Free Speech Altercations Here. Check Here for legal information regarding this situation. Scenario B Part One You and some friends have gathered at a city park. You have set up a table and a canopy on the grass at the edge of the major walkway inside the park. Your table is not blocking the pathway. On the table you have literature, petitions, voter registration cards and a donation jar, as well as books, bumper stickers and T-shirts all relating to the cause. The parkkeeper approaches and says:
Scenario B Part Two The City Police arrive and could say:
Scenario C You are outside a Wal-Mart at the local mall, you are petitioning with a clipboard and handing out flyers, the Salvation Army is handing out information and collecting donations next to you. The store manager comes out and tells you to leave or they will call the police. What do you say? Answer Here. Scenario D You have set up a small card table containing literature and a donation jar on Main St. downtown next to a New York Times vending box. You are not blocking the sidewalk or obstructing a fire hydrant. You are taking up no more space than the newspaper box. The Police arrive and make the threats that we have discussed, what do you say? Answer Here. Scenario E You are outside a major sporting event or concert at your city stadium or arena, i.e. a football game or a Rolling Stones concert. An administrator who says they represent the stadium says:
Scenario F You are petitioning at the Local bus, train station, airport or public transit area and are asked to leave. What will you do? Answer Here. Scenario G The Follow Up: Now, let’s suppose that after any of the above situations you have been sent to a government office to get a permit for your activity i.e. The Department of Parks, The County Clerk or the Police Department. You ask for the permit forms and corresponding ordinances relating to your activity. The bureaucrat you are dealing with says:
Recording your encounters with law enforcement immediately helps keep the information clear later. When writing a report, always include the following information:
Write the details of the encounter in a short narrative: include any relevant details about the location or what led up to the incident. Details about the conduct of the authorities are very important. Quotes that can be substantiated with video or audio are always helpful. In the rare event that an arrest took place, also include the arresting agency, name of arresting officer, where the person is being held, amount of bail and time, date and location of next appearance. Reports should always contain supporting paperwork when available. Supporting papers might include, ordinances, arrest reports, permit forms, copies of the literature being distributed. Each person directly involved should also write a separate statement. These statements may be used later if litigation becomes necessary. FL CAN’s Legal Support Network is available to help you understand and exercise your First Amendment rights. A talented team of attorneys’ advice the Legal Support Staff and FL CAN’s legal support network can usually provide you with the name of qualified counsel in your area. FL CAN does not provide money for bail or attorney’s fees, however; FL CAN will often help find resources that do provide these services.
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