In the wake of white nationalist protests and counter-protests across the nation, protesters and public safety officials should understand what speech is protected by the First Amendment and what speech constitutes criminal activity.
What speech is protected?
The U.S. Constitution’s First Amendment protects free speech broadly. It generally prevents police officers from limiting public speech or expressive conduct (i.e. carrying signs or wearing T-shirts with messages), even if they disagree with or disapprove of the ideas expressed. Federal and Pennsylvania courts have ruled consistently that profane cursing or swearing or a vulgar gesture (i.e. raising the middle finger), regardless of how offensive, is constitutionally protected speech. This standard applies even when the profanity is directed to police officers, who are often called upon to keep order during a protest.
What speech is criminal activity?
There are, however, limits to the First Amendment’s protections. “Fighting words” – words that threaten, encourage, or incite violence – are not protected speech. Police officers must balance the right to free speech and public safety, and if a protester’s speech or other conduct may result in imminent danger to a person, then they should act by making an arrest.
Also, if a protester’s speech is coupled with a threatening gesture or repeated refusal to cease behavior after an officer told them to do so, then the protester may be arrested. If an officer reasonably expects that a protester’s speech and other conduct may result in harm, public inconvenience, annoyance, or alarm, and the protester ignores the officer’s requests to disperse, then an arrest would be warranted. So, while a protester’s non-fighting speech alone may be protected, other conduct may rise to criminal activity.
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