Controlling Public Protest:
First Amendment Implications by Daniel L. Schofield, S.J.D.
Special Agent Schofield is the Unit Chief of the Legal Instruction
Unit at the FBI Academy.
From the November 1994 issue of The FBI's Law Enforcement Bulletin
- "The Law Enforcement Bulletin is published monthly by the Federal
Bureau of Investigation, Ninth and Pennsylvania Ave. N.W., Washington,
D.C. 20535. The FBI should not consider contributors' opinions and
statements as an endorsement for any policy, program, or service.
- The Supreme Court has indicated that in the context of protests,
parades, and picketing in such public places as streets and parks,
"...citizens must tolerate insulting, and even outrageous, speech
in order to provide adequate breathing space to the freedoms protected
by the First Amendment."
- Police face difficult constitutional and operational issues when
tasked with the dual responsibility of maintaining public order and
protecting the first amendment rights of protectors and marchers.
- This article discusses recent court decisions concerning the constitutionality
of permit requirements and injunction-based restrictions that limit
the time place, and manner of expressive activity in public places.
- Three general first amendment principles guide departmental decision-making
in controlling public protest. First, political speech in traditional
public forums, such as streets and parks, is afforded a very high
level of first amendment protection, and blanket prohibitions of such
speech are generally unconstitutional. Second, reasonable time, place,
and manner restrictions on such speech are permissible if they are
content-neutral, narrowly tailored to serve substantial government
interests, and leave ample alternative ways for the speech to occur.
Third, speech or expressive conduct can be restricted because of its
relationship to unlawful conduct, such as disorderly conduct or trespass.
Content-Neutral Permit Requirements
- The first amendment permits the government to impose a permit requirement
for those wishing to engage m expressive activity on public property,
such as streets, sidewalks, and parks. Any such permit scheme controlling
the time, place, and manner of speech must not be based on the content
of the message, must be narrowly tailored to serve a significant governmental
interest, and must leave open ample alternatives for communication.
The Supreme Court has held that any permit regulation that allows
arbitrary application is "...inherently inconsistent with a valid
time, place, and manner regulation because such discretion has the
potential for becoming a means of suppressing a particular point of
- The Supreme Court has ruled unconstitutional permit schemes that
vest government decision-makers with uncontrolled discretion in deciding
whether to issue a particular permit.
- Ideally, a permit scheme should include: 1. A written description
of the permit/license application process 2. Comprehensive and unambiguous
standards for implementation and the objective criteria of officials
will use in determining whether to grant or deny a permit application
3. A time frame for the application process and for decision-makers
to consider an application 4. A provision for notifying the applicant
that a permit request has been denied and the reasons for the denial
5. An established route to appeal a denial of an application 6. Language
that avoids inherently vague terms, the meaning of which is not self-evident
or easily discernible, such as "first amendment activities," "unique
circumstances," "unique hardship," "public nuisance," or "detrimental
to public health and safety," and 7. The identity of the person or
persons with the authority to grant or deny a permit request.
- A permit process must be narrowly tailored to serve significant
government interests. For example, a Federal district court ruled
unconstitutional a city's refusal to grant permission for a nonprofit
organization to set up portable tables at particular locations on
the public sidewalks of the city's commercial and historic district.
The nonprofit organization intended to distribute literature, discuss
issues of spiritual ecology, and sell T-shirts carrying messages related
to the organization's religious tenets. The court said the lack of
a coherent permit scheme, narrowly tailored to serve city interests,
gave the city unbridled discretion to grant or deny a request.
- However, the court suggested the first amendment would permit the
city to use narrowly tailored regulations to minimize interference
with pedestrian movement on crowded sidewalks, such as established
times for such activity and limitations on the size and precise positioning
of the tables.
- Moreover, the city's legitimate interest in preserving the character
and appearance of its historic district might justify restrictions,
if the city's permit scheme has content-neutral standards narrowly
tailored to serve that objective and the city proves that its aesthetic
concerns are sufficient to warrant the abridgment of first amendment
Restrictions Based on Threat of Violence
- The U.S. Court of Appeals for the District of Columbia stated in
Christian Knights of KKK v. District of Columbia that when using a
public forum, "...speakers do not have a constitutional right to convey
their message whenever, wherever and however they please." Accordingly,
the government may regulate a marcher's use of the streets based on
legitimate interests, such as: 1) Accommodating conflicting demands
by potential users for the same place; 2) protecting those who are
not interested onlookers, like a "captive audience" in a residential
neighborhood, from the adverse collateral effects of the speech; and
3) protecting public order.
- The court emphasized that a permit process cannot be used to "...impose
even a place restriction on a speaker's use of a public forum on the
basis of what the speaker will say, unless there is a compelling interest
for doing so, and the restriction is necessary to serve the asserted
compelling interest." The court ruled the city's denial of a permit
request from the Ku Klux Klan to march blocks and the resulting decision
to limit the march to only 4 blocks was unconstitutionally based on
anticipated listener reaction, which turns on the group marching,
the message of the group, and the extent of antagonism, discord, and
strife the march would generate. However, the court also held that
a restriction based on the threat of violence could be constitutionally
justified if that threat of violence is beyond reasonable control
of the police.
The court noted: ''When the choice is between an abbreviated
march or a bloodbath, government must have some leeway to make adjustments
necessary for the protection of participants, innocent onlookers,
and others in the vicinity...Regardless of the Klan's message, and
its opinion of the precise route needed to express it, some governmental
interests are weighty enough to justify restrictions on speech in
a public forum--particularly restrictions, like this one, that limit
but do not ban or punish a march, and indeed allow use of a significant
segment of the street requested."
- Nonetheless, because of conflicting police testimony and evidence,
the court concluded the threat of violence posed by the proposed Klan
march was not beyond reasonable police control and that the restriction
therefore violated the first amendment.
- A court-ordered weapons ban at a particular Klan rally site, based
on the threat of violence and the stated intention and practice of
the Klan to bring firearms to their rallies, may justify police conducting
general magnetometer searches of persons and packages at that site
without regard to standards of reasonable suspicion or probable cause.
However, mass pat-down searches of persons entering the rally sites
would likely violate the fourth amendment. Supreme Court Rejects Permit
Fee Based on Listener Reaction To what extent can the government assess
fees and costs for the issuance of a permit authorizing expressive
activity in a public forum? In Forsyth County, Georgia v. The Nationalist
Movement, the Supreme Court ruled unconstitutional a parade ordinance
that permitted a government administrator to vary the fee for assembling
or parading to reflect the estimated cost of maintaining public order.
The Court said that a $1,000 cap on the parade permit fee did not
render the otherwise invalid ordinance constitutional. Specifically,
the Court noted that there were no articulated standards, either in
the ordinance or in the county's established practice, to guide the
decision of how much to charge for police protection or administrative
time--or even whether to charge at all. Not only was there a possibility
of censorship through such uncontrolled discretion, but the county's
fee also often depended "...on the administrator's measure of the
amount of hostility likely to be created by the speech based on its
- While those wishing to express views unpopular with bottle-throwers
might have to pay more for their permit, the Court noted the county
did not even charge for police protection for 4th of July parades,
which drew large crowds that required the closing of streets. The
Court concluded the county imposed a fee only when it became necessary
to provide security for parade participants from angry crowds opposing
their message and that listener's reaction to speech is not a content-neutral
basis for assessing a permit fee.
Permissible Fees and Costs
- The Supreme Court in Forsyth County did not decide whether only
nominal charges are constitutionally permissible, but four Justices
agreed in a dissenting opinion that the Constitution does not limit
a parade permit fee to a nominal amount and permits a sliding fee
to account for administrative and security costs. In that regard,
lower courts have upheld the practice of assessing permit fees in
accordance with projected police expenses if certain conditions are
met. For example, a Federal district court upheld the Kansas City
Police Department's policy of requiring parade sponsors to pay for
the cost of traffic control. The court concluded the department's
extensive list of factors used to project associated police costs
were content-neutral, with the exception of a "crowd control" factor,
which the court said was unconstitutional and needed to be severed
from the otherwise constitutional policy. Similarly, the U.S. Court
of Appeals for the Sixth Circuit upheld a Columbus, Ohio, ordinance
that required prepayment of an $85 fee for the cost of processing
a parade permit application and prepayment of the cost for traffic
control. The court ruled that the ordinance 1) did not permit speculation
about the degree of violence a parade may provoke; 2) provided protection
for the marchers without consideration of its cost; and 3) contained
objective standards related to traffic control and not related to
speculation about the potential for disturbances based on the parade's
content. Presidential support for the assessment of costs also can
be found in a California appellate court decision upholding portions
of an ordinance that requires a parade permittee to reimburse the
city for, and pay in advance, an estimate of "all city departmental
service charges incurred in connection with or due to the permittee's
activities under the permit. " The ordinance also requires that "if
city property is destroyed or damaged by reason of permittee's use,
event or activity, the permittee shall reimburse the city for the
actual replacement or repair cost of the destroyed or damaged property.
" The court said the fees correspond to the size of the parade and
its impact on normal traffic and not the size of the crowd in attendance.
Also, the departmental service charge and cleanup reimbursement requirements
are textually tied to the activities of the permittee itself and does
not purport to impose responsibility for the acts of others. It is
constitutionally significant that in all the above cases upholding
permit fees and costs, indigent groups unable to pay the fees were
not precluded from engaging in expressive activity, because an alternative
forum was available. For example, sidewalks were free for conducting
a parade because traffic control was not affected and parks were available
without cost for related speech activities.
- Injunction-based restrictions on expressive activity may be a viable
and operationally effective option for law enforcement to maintain
public order. In Madsen v. Women's Health Center. Inc., the Supreme
Court reviewed an injunction entered by a Florida State court that
prohibited antiabortion protectors from demonstrating in certain places
and in various ways outside a health clinic that performs abortions.
The protectors were enjoined from blocking or interfering with public
access to the clinic and from physically abusing persons entering
or leaving the clinic.
- However, the protectors continued to impede access to the clinic
by congregating on the paved portion of the street leading to the
clinic and by marching in front of the clinic's driveways. As vehicles
heading toward the clinic slowed to allow the protesters to move out
of the way, "sidewalk counselors" would approach and attempt to give
the vehicle's occupants antiabortion literature. The number of people
congregating varied from a handful to 400, and the noise varied from
singing and chanting to the use of loudspeakers and bullhorns. Protesters
also picketed in front of clinic employees' residences.
- Because of this conduct, the Florida court issued an amended injunction
which, inter alia, excluded demonstrators from a 36-foot buffer zone
around the clinic entrances and driveway and the private property
to the north and west of the clinic. The injunction also restricted
excessive noisemaking within the earshot of, and the use of "images
observable" by, patients inside the clinic, prohibited protesters
within a 300-foot zone around the clinic from approaching patients
and potential patients who do not consent to talk, and created a 300
foot buffer zone around the residences of clinic staff. The Supreme
Court concluded that injunction-based restrictions must burden no
more speech than necessary and that an injunction regulating a particular
group's activities that express a particular viewpoint is not impermissibly
content-based when premised on the group's past illegal or inappropriate
- Because all injunctions, by their very nature, apply to particular
groups or individuals, the Court said the test for determining content-neutrality
is whether the government's purpose in regulating the speech is without
reference to its content.
- The Court held that injunctions carry greater risks of censorship
and discriminatory application than generally applicable statutes
and ordinances and that content-neutral injunctions must therefore
be evaluated under a somewhat more stringent test to determine if
"...the challenged provisions of the injunction burden no more speech
than necessary to serve a significant government interest." The Court
then determined the constitutionality of the injunction's buffer zones,
noise restrictions, ban on the display of signs and visual images,
and restriction on residential picketing.
- The Supreme Court upheld a 36-foot buffer zone around the Florida
abortion clinic's entrances and driveway, finding it burdened no more
speech than necessary to accomplish the governmental interest in protecting
unfettered ingress to and egress from the clinic and because it ensured
that traffic would not be blocked. The Court concluded this buffer
zone also was justified by the failure of the earlier injunction to
accomplish its purpose of protecting access to the clinic. Conversely,
the Court said that a portion of the 36-foot buffer zone that extended
to private property on the back and side of the clinic was unconstitutional
because it burdened more speech than necessary to protect access to
the clinic. Because there was no evidence that the protectors had
ever used the private property to obstruct access to the clinic, the
Court found that this portion of the buffer zone did not serve a significant
- The Supreme Court also held unconstitutional a buffer zone provision
that ordered protectors to refrain from physically approaching any
person seeking services of the clinic, unless such person indicates
a desire to communicate in an area within 300 feet of the clinic.
While the stated purpose of this restriction was to prevent clinic
patients and staff from being "stalked" or "shadowed" as they approached
the clinic, the Court said a prohibition on all uninvited approaches,
regardless of how peaceful the contact may be, burdens more speech
than necessary to prevent intimidation and to ensure access to the
clinic. The Court found this ban on all uninvited approaches unconstitutional"...absent
evidence that the protesters' speech is independently proscribable
(i.e., "fighting words" or threats), or is so infused with violence
as to be indistinguishable from a threat of physical harm. "
- Using a similar rationale, the Supreme Court of New Jersey held
an injunction provision creating a buffer zone was too broad-based
on an insufficient history of threats and intimidation. Rather than
prohibiting all expressional activities on the sidewalk directly in
front of the medical center, the court said the injunction should
have allowed a limited, controlled form of expression near the entrance,
while restricting the troublesome mass of protectors to a location
across the street. The court said the injunction should give consideration
to the right of protectors to make their presence known and to the
role of sidewalk counseling in that process, while at the same time
protecting against any harassment of the patients or others who wish
to enter the clinic.
- Nonetheless, a history of intimidation by a particular group may
justify a restrictive buffer zone. For example, the California Supreme
Court upheld an injunction provision creating a "clear zone" that
effectively barred antiabortion protectors from the public sidewalk
in front of a clinic by requiring that all picketing, demonstrating,
or counseling take place on the public sidewalk directly across the
street. The court said the restriction was justified based on the
group's history of intimidation and the fact that the first amendment
does not guarantee the right to a captive audience.
- The Supreme Court in Madsen upheld a portion of the injunction that
restrained the protectors from singing, chanting, whistling, shouting,
yelling, and using bullhorns, auto horns, or sound amplification equipment
within earshot of the patients inside the clinic during the hours
of 7:30 a.m. through noon on Mondays through Saturdays. Noting the
importance of noise control around hospitals and medical facilities
during surgery and recovery periods, the Court found the noise restriction
burdened no more speech than necessary to ensure the health and well
being of the patients at the clinic. The Court noted that patients
should not have to "...undertake Herculean efforts to escape the cacophony
of political protests."
- Other courts have upheld disorderly conduct prosecutions for unreasonable
noise based on the government's broad powers to protect citizens from
unwelcome noise. This can extend to any situation in which individuals
cannot escape bombardment of their sensibilities and which substantially
threatens their privacy interests.
- Bans on the Display of Signs and Visual Images The Supreme Court
in Madsen ruled unconstitutional a provision in the injunction that
prohibited protectors from using images observable to patients inside
the clinic during the hours of 7:30 a.m. through noon on Mondays through
Saturdays. The Court suggested the first amendment would not be violated
by an injunction-based prohibition on the display of signs that could
be interpreted as a threat or veiled threat to patients or their families.
However, the Madsen injunction's broad prohibition on all "images
observable" burdens more speech than necessary to achieve the purpose
of limiting such threats.
- If the purpose is to reduce the level of anxiety and hypertension
suffered by patients who find the message expressed in the placards
disagreeable, the Court distinguished the ban on signs from restrictions
on noise by noting that "...it is much easier for the clinic to pull
its curtains than for a patient to stop up her ears. "
Restrictions on Residential Picketing
- The Supreme Court in Madsen ruled unconstitutional a provision in
the injunction that prohibited picketing within 300 feet of the residences
of clinic staff. The Court said the protection of residential privacy
and tranquility is a legitimate governmental interest of the highest
order and affirmed its prior decision upholding the constitutionality
of an ordinance that prohibited "focused picketing taking place solely
in front of a particular residence."
- However, the Court found the 300-foot zone around residences burdened
more speech than necessary because it banned general marching through
residential neighborhoods or even walking a route in front of an entire
block of houses. The Court concluded that "...a limitation on the
time, duration of picketing, and number of pickets outside a smaller
zone could have accomplished the desired result. "
- A Federal district court ruled an ordinance could be enforced to
prohibit continuous picketing in front of a doctor's home but not
to prevent picketing in the doctor's neighborhood, so long as the
picketers did not picket in front of the doctor's home or the two
homes on either side of the doctor's home. The court noted sympathetically
that police need bright-line standards to help them enforce such ordinances
that raise difficult first amendment issues.
- The Supreme Court has interpreted the first amendment as creating
a "...profound national commitment to the principle that debate on
public issues should be uninhibited, robust and wide-open. " Law enforcement
often has the responsibility of balancing the legitimate need to maintain
public order with the important interest in protecting first amendment
rights. Because the legality of the various enforcement options discussed
in this article depends on a complex and fact-specific analysis, law
enforcement decision-makers should obtain competent legal review of
any proposed restriction on expressive activity. In that regard, a
particular group's past violent or disruptive conduct should be carefully
documented because it is relevant to this analysis. Finally, it is
recommended that officers receive legal training on the basic principles
of first amendment law before being assigned the difficult task of
controlling public protest.