What does the U.S. Constitution say about political protests?

Written by William C. Duncan

May 9, 2024

Protests and protesting, it seems, are (pardon the pun) all the rage now. Even the president of the United States has weighed in on the most high-profile campus protest, at Columbia University, albeit only as it appears to be winding down.

Protests of some type have been a feature of the nation’s history and are a virtual symbol of free speech (at least based on an image search for “free speech” on Google).

So, what does the U.S. Constitution say about political protests?

Of course, the First Amendment protects the freedom of speech and public marches, rallies, etc. are certainly a forum for expressing ideas and opinion. Because protests include both speech and other factors, like crowds and noise, court decisions have addressed whether governments can impose limitations on protests. These possible limitations are referred to as “time, place and manner” restrictions which allow governments some leeway in regulating actions of protesters to advance interests in controlling crowds, preventing harm to spectators, protecting property and similar concerns. Additionally, speech protections do not shield otherwise criminal actions like physical attacks, trespassing, or property destruction.

The First Amendment also protects the overlapping “right of the people peaceably to assemble.” This provision has not received as much attention but the Supreme Court has held that it protects “the right of the people to gather in public places for social or political purposes.” Its limitation is inherent in the text – that the assembly has to be “peaceable.”

Beyond these formal provisions, other elements of our constitutional system provide helpful guidance to protesters.

For instance, the purpose for protections of speech and assembly is that these are important aspects of the process of persuading others which is the lifeblood of self-government. Thus, while not a legal requirement, protesters are well-advised to consider how persuasive their messages and conduct are. It is interesting that public protests are often called “demonstrations.” That seems appropriate because those who view the protest, those the protesters are trying to persuade, will view the protest not just as a vehicle for expressing views (often in the form of loosely rhymed chants) but as a demonstration of what the protesters value, of how they deal with those with whom they disagree, of what society might be like if those with their views were in charge.

This was part of the inspiration of Civil Rights protests against segregation and similar evils. Often, the dignified, peaceful marches demonstrated the moral stature of the cause more than words might do. Particularly when marchers were met with ugly hate and violence, these demonstrations served to rouse the conscience of Americans and led them towards support, or at least away from opposition, to a demonstrably just cause.

By contrast, many recent protests are markedly different. Ranging from support for terrorist groups to violence against minorities to simple boorishness, the actions of some protesters do little to persuade, demonstrating a lack of moral seriousness or even dangerous and misguided beliefs. Survey data suggests the recent protests on college campuses have not changed mainstream opinions in the direction the protesters would hope.

Related to persuasion is the constitutional promotion of consensus-building. As James Madison famously explained, the large republic created by the U.S. Constitution would dampen the ability of a small zealous faction from imposing harmful policies on the nation because they would be checked by other interests. Other features of the legislative process – representation rather than direct democracy, majority votes, a bicameral legislature – would work together to promote efforts to come to agreement or consensus across factional lines in order to make laws. This would usually promote, in the words of the Declaration of Independence, a “decent respect to the opinions” of others.

When an assembly comes to resemble a mob, however, the viewpoints of those who differ are typically a source of anger and even a justification for intimidation rather than a claim on our respect. The symbol of protest is usually a megaphone, not some instrument of discussion.

Finally, the Constitution stands for the proposition that process matters. A reader would be hard pressed to find anything in the Constitution that supports the notion that there is no wrong way to do the right thing. Even many of the substantive rights, such as protections for those accused of committing a crime, are framed in procedural terms. Some argue that disruption, anger, lawbreaking and even violence can be justified when the cause is important enough. That is rarely true, and our Constitution reflects that reality.

To live in a decent, orderly and peaceful society means that we often must wait to see our policy preferences on climate change, abortion, or foreign policy enshrined in law. Sometimes they won’t ever be adopted. (Of course, in time we may be happy they did not as we come to realize our strong, even vituperative, opinions were misguided or wrong.) That can be frustrating but the alternative, where vocal and aggressive factions can force change and override dissent acting on ideological fervor, is not an appropriate tradeoff.

Ultimately, the Framers of the Constitution treated rights and responsibilities as inseparable. Protests, demonstrations and any political activity that reflects this reality can be an appropriate expression of constitutionalism. Such actions will respect order and legal processes, and be peaceable, persuasive and respectful towards others. When the cause truly is just and important, the actions taken to promote it may also be slower to yield results and those results are likely to be marked by compromise, but for those reasons they are likely to be more enduring and, eventually, more widely accepted.

Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.

  • The First Amendment guarantees of speech and peaceable assembly protect some aspects of protests, but there are significant limitations on what protesters can do.
  • Other constitutional principles can shape protests, such as the need to respect order and legal processes and be persuasive and respectful towards others.

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