Protesting is as American as apple pie. Dissent was foundational to the establishment of the nation and has been inextricably linked to the democratic process for hundreds of years. And the current Movement for Black Lives, which has ongoing protests against police brutality and racial injustice across the United States, and all over the world, is no exception. Attorneys who are concerned with the rights of protesters, or are participating in political actions themselves, should make sure they understand the rights of activists, and learn to handle potential arrests of protesters.
The traditional public forum. This includes public spaces such as sidewalks or public parks. However, most public spaces still require permits for protests. Many public parks require compliance with time, place, and manner restrictions (such as the park’s closing time and noise regulations), but these regulations must be content-neutral and narrowly tailored to serve a compelling government interest.
The designated public forum. This includes privately owned or operated spaces that the government has opened for expressive activity (often due to a land use agreement). Speech in these spaces can be limited, but again, any restriction on speech must be content-neutral.
Nonpublic forum. Spaces such as military bases are not commonly used for protests, and protest permits will not be issued for this type of forum. If you are advising activists who want to protest in nonpublic spaces, they should know that the risk of arrest is high.
II. Know Your Privilege.
Attorney-client privilege exists for the purpose of keeping the protestor’s information private. Speaking in front of strangers (giving legal advice to clients and non-clients) may cause the attorney-client privilege to be waived - only what is said to your client in private will be considered confidential. “Know Your Rights” (KYR) sheets, however, can be widely distributed.
III. Know Your Technology.
Protesters should be informed about potential police surveillance. Attorneys should warn activists about stingray technology used by many police departments - equipment that imitates a cell tower, connects to cell phones, and can tap into protester’s phone calls. If an attorney communicates by cell phone with a client, they should verbally indicate that the conversation is privileged. This will make it more difficult for prosecutors to use these conversations as evidence in court. Attorneys should also stay up to date on new surveillance technology, so they can advise protesters appropriately as police departments adopt new methods.
These are some broadly applicable tips, but it is extremely important for an attorney be familiar with the local laws, regulations, and police practices. For example, in NYC, a summons can be issued at the arrest location or at the precinct. If the precinct issues a summons, they will most likely fingerprint and photograph activists before they are released. Attorneys should also be mindful of the potential consequences for activists who end up being arrested, such as the different types of criminal and non-criminal dispositions, community service, and fines.