EXPRESS
YOURSELF!
How to use
your
First Amendment Rights
by Kevin Aplin
How to use your First Amendment
Rights
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise there of, 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
location you choose.
- 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. 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 in easily be disposed
of.
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.
Do you need a permit
to engage in free speech?
Many types of speech activities do not require a permit. When
they are required, the permitting scheme must be content neutral,
must not be cost prohibitive and must be granted promptly. Types
of speech that generally do not require permits are handing
out of literature, petitioning, holding a sign or talking on
a soapbox in any public area.
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 band shell 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
booklet and send them to FLCAN at www.jug-or-not.com/can
or flcan@vitel.tzo.com.
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 aright to a hearing on why cameras or
recorders are being excluded.
Interactive Scenarios
The remainder of this page is designed to encourage you to examine
various situations that could occur, during a free speech exercise.
Most of the scenarios come from the case files of CAN"s Legal
Support Network. Consider the responses you might give during
each encounter and then refer to the latter part of the page
for the Legal Support Network's recommendations.
Scenario A
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 talk to people on public property"
The bailiff may say,
- Well, I am going to call the sheriff."
- This property belongs to the courthouse."
- Somebody complained."
- Do you have a permit?"
- Well, marijuana is illegal and you can't do that here."
- " You're going to have to move across the street onto
city property?"
- " You can hand out flyers, but you have to remove the
sign."
- " You can't approach people, they have to come to you."
- " Can I see some ID?"
- " I'm going to check with the judge, you have to stop
while I check"
- " Come with me so we can talk inside?"
- " Well this is against our policy."
Check your responses to the Legal Support
Network's recommendations below.
Scenario A Part Two
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 say,
- " Who's in charge here?"
- " Do you have a permit?"
- " Can I see some ID?"
- " Come over to the car with us?"
- " We're going to have to confiscate that sign."
- " Stop filming us."
- " We're going to have to search your backpack."
- " If you don't have a permit, you will be arrested if
you refuse to leave."
Recording devices are always recommended when you are out doing
free speech work. Don't count on the friend to just show up!
Preplan your next encounter with Government officials by having
an audio recorder and camera or better yet, a video or digital
recorder on hand.
Scenario B
You and some friends have gathered at a city park. You have
setup 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:
- "You"re going to have to pack up and leave, this is against
park regulations."
- "Do you have a permit?"
- "I'm going to call the Police."
Scenario B Part Two
The City Police arrive and say:
- "You can stay as long as you take down the table and the
canopy."
- "You can't sell anything without a vending license."
- "We are going to write you a citation for vending without
a permit."
- "We are going to seize your display."
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?
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?
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:
- You are on private property and if you don't leave I will
have you arrested for trespassing."
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?
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:
- "There is no permit required for that activity."
- "Our policy prohibits that kind of activity."
- "You have to schedule an item on the agenda at the next
meeting of the county commission in three weeks and get
their approval."
- "Here are the forms including fees and insurance requirements."
- "You have to get permission from the County Judge and
the Chief of Police."
- "You have to go and petition the businesses and residents
in the area that you're planning to speak."
- "You need to submit your proposed activity to us in writing
before we will give you the forms."
- "The person that deals with that won't be back until next
week."
- "The area you are requesting is managed or leased to a
private corporation so you have to ask their permission."
What to do if arrested during a free speech
activity.
If you are arrested during a free speech activity don't panic.
The only information you have to give to the police is your
name, address and date of birth. You might reiterate that you
have a legal right under the first amendment to have engaged
in your activity and that you believe this to be a false arrest
and that you would like to contact legal services. Do
not sign anything, say anything or consent to any searches until
you have contacted CAN or your lawyer. Keep demanding
your right to a phone call until you get it. If you have not
been able to reach legal services before your first appearance,
which may occur within 24 hrs. Ask the judge to appoint you
a lawyer or to allow you to contact one. Always ask the Judge
to release you on your own recognizance, if the judge won't,
then ask that your bail be reduced. Emphasize that you want
to show up in court to fight these charges.
Answers and Explanations
Scenario A.
Always make sure that you or someone
in your group is continuing to exercise your rights, do not
stop passing out flyers while the authorities try to investigate.
- "Okay, go ahead, I have a right to be here. What is your
name sir?
- "This courthouse is public property and belongs to everyone."
- "I have been polite to everyone; I can't help it if some
people disagree with giving medicine to sick people."
- "I don't think a permit is required for petitioning at
any courthouse in America, but if you could tell me where
I get the application I would be glad to look into it."
- "Marijuana laws have nothing to do with my right to petition
hereon any issue including pay raises for bailiffs. "
- "I don't want to move across the street I am on public
property and there are more people here to talk to. Could
you please show me an ordinance or policy that says I can"t
petition here?"
- "My sign is not obstructing anything and is safely secured."
- "I have a right to approach and talk to people and they
are free to refuse the flyers and make there own choices,
we are always polite to everyone."
- "Why are you asking for my ID, am I suspected of a crime?
- "Okay, go and check with the Judge, but I am continuing
to exercise my first amendment rights. "
- "No sir, I am quite comfortable here thank you.
- "Could you please show me the policy or tell me where
to get a copy."
Remember: the Courthouse is set aside
as a public forum. Often times the Legal Support Network has
found that bailiffs have not been trained to protect a citizen's
constitutional rights. If you are cool, confident and know your
rights, you may be educating the bailiffs.
Scenario A Part two
It is a good idea for the most confident person to be the spokesperson
but it is very important that everyone stays in earshot,
do not let the police separate you.
- "Well no-one is in charge but I will be glad to talk to
you."
- "I didn't think a permit was required for free speech
outside a courthouse."
- "Why are you asking for ID am I a suspect in a crime?
If the officer says he will arrest you for failure to ID
you can choose to either present a valid ID or verbally
tell them your name, date of birth and place of residence.
Do not lie and make up information. If you prefer not to
produce 10 the law in this situation does not require you
to do so. Police often use holding your ID as a way to disrupt
your activity. Verbal identification is sufficient.
- "I am quite comfortable talking to you here unless I am
under arrest."
- "The sign is not obstructing anything and is safely secured."
If Police start to grab the sign, do not physically resist,
in fact in any encounter with law enforcement do not ever
touch them, you are of course free to verbally resist their
actions.
- "We have a right to film anything in the open on public
property; or we are making a documentary." Again if Police
grab the camera stay calm and do not physically resist.
Do not however stop filming until they grab the camera.
- "I have a fourth amendment right to privacy and do not
consent to any search of my personal property. You have
no probable cause to conduct any search of my effects on
me."
- "I would like you to tell me what charge I will be arrested
on anyd where to get a permit. I don't believe a permit
is necessary and if I am arrested I will consider it a false
arrest and a violation of my civil rights. Could you please
check with your shift commander or your staff attorney before
you make this decision?"
If they agree to contact superiors
continue your activity; if they don't and insist that you leave
you have a decision to make.
If you are sure of your rights, then an arrest is not
a disaster; in fact, it can be very helpful to your cause in
terms of publicity and civil damages that you may recover.
If you are in a group it is best to select one person to continue
the activity and take the arrest, make sure someone else has
possession of that persons valuables like money, car and house
keys. The rest of the group can then back down and act as witnesses
to the police conduct during the arrest. Witnesses should immediately
contact legal services in the event of an arrest. Taking only
one arrest greatly reduces the time and expense of litigation.
If you choose not to get arrested,
tell the Police that you are leaving peacefully, but under duress.
Get their names and instructions on how to complain and get
a permit. Immediately write down an
account of the events and report the incident to CAN.
Scenario B
- "Could I see those regulations please."
- "I didn't think we needed a permit to gather in our park."
- "Okay, but we are not doing anything wrong."
In some areas park officials have the same privileges to arrest
and ticket that law enforcement do, know your area when doing
work in parks.
Scenario B Part Two
- " Why do we have to take down the table and the canopy,
this is a public park do people not use canopies and tables
for picnics?"
If the Police can site you an
ordinance that requires a permit for a structure, find out
where to get the paperwork and comply, but continue to distribute
literature.
- "We are not selling anything. We take minimum and supporting
donations for this issue related merchandise. We are not
commercial vendors, all the money raised here is to support
our speech."
Make sure they know that the literature
is being distributed free of charge and contributions for
that are voluntary. You could also say you are collecting
money for memberships or subscriptions and different levels
of contributions receive particular gifts just like PBS
does. For example a $10 membership gets you a free T-shirt,
a $25 membership gets you a T-shirt and a book.
These scenarios
exist only if the police insist on writing the citation
or seizing merchandise.
- In this case, if the Police write a citation, they have
to have identified an individual who is in charge, usually
the person arguing with them. They can be confused by everyone
taking responsibility for the display. If they insist on
writing the citation take it and report it to CAN or your
lawyer.
- If they seize your display ask for an inventory of items
seized and demand an explanation, make absolutely certain
you have their names and correctly identify the agency they
work for. Report immediately to CAN services.
Quite often the Police do not understand the distinction between
commercial vendors who require licenses and free speech displays.
They will even send in under covers to try to make a purchase
at the table, be sure to keep your terminology consistent. If
Police insist that you cease fundraising, ask them were to get
a solicitors permit. To obtain a solicitors permit should be
a simple and almost instant process, there may be a very small
fee involved. Even a small fee can usually be waived if you
are indigent. If the process seems complicated or charges excessive
fees, it is probably unconstitutional. Please report the incident
and send the paperwork to CAN.
Scenario C
Unfortunately, shopping malls are considered private property,
so even though the Salvation Army are outside Wal-Mart, it is
at the discretion of the Management to determine who gets to
solicit. Your response in this case would be to ask management
at the store for permission or politely explain you didn't understand
the policy and leave. Remember your First Amendment rights to
protest do not apply on private property, you must always ask
permission. Many club owners are willing to let you set up tables
on their property, so don't be shy.
Scenario D
Similar to the courthouse and the park, your greatest defense
here is the news box. If the New York Times has the right to
sell it's newspaper which contains both pure and commercial
speech (they take advertising dollars). Your statement to Police
could go something like this. "I believe I have an even greater
right to be here than this NY Times box. I am not obstructing
the regular flow of traffic and am taking up no more space than
this box. I have aright to solicit contributions for my noncommercial
newsletters. If you force me to leave my lawyers will insist
that all news boxes also be removed from city streets". This
normally works, again, if it doesn't please file a report.
Scenario E
Several questions must be asked when dealing with a large stadium.
Stadiums that are built with some public money or are leased
that day for a specific activity are considered limited public
forums. Careful research is required to establish where the
line between public and private property begins and ends. Always
ask where to get documentation of who has jurisdiction of the
area outside the stadium. A stadium may designate a particular
area for free speech activities. You could spend weeks trying
to find out what the policy is, showing up at the Stadium and
being told to leave is a sure way to identify the enforcers
and establish what the policy is, so it can be challenged later
in court if necessary.
Scenario F
The courts have ruled that most public transit facilities are
a public forum, but the government or management of those facilities
has aright to designate a specific area for speech activities
to take place. However if the designated area is so remote an
area as to prevent anyone from receiving the message this can
be challenged in court.
Scenario G
If you are told there is no permit required for your activity
ask that they put that in writing. If they refuse ask who will
put that in writing. The answer to all other responses from
administrators is that you would like to see the policies and
ordinances in writing. If they are uncooperative remind them
of the Freedom of Information Act that requires the government
to allow you to inspect and photocopy such documents. If they
still refuse to cooperate contact CAN.
Checklist for 1st Amendment activities
Know your location.
Empty your pockets - don't carry anything illegal.
Be Firm, Polite, Calm and Consistent at all times.
Smile and Good Luck
Reporting incidences to FL CAN or your attorney
Recording your encounters with law enforcement immediately helps
keep the information clear later. When writing a report, always
include the following information:
Time, date and location of the encounter. Names and contact
information of all witnesses. Name, title and department of
all authorities involved.
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 CAN's 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.
Contact FL CAN @     321-255-9790
2613 Larry Ct. Melbourne, FL 32935
Flcan@vitel.tzo.com
www.jug-or-not.com/can
Donations to the work of the FL CAN's
free legal support network are always needed. |
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