What the First Amendment protects
Protected vs. Not Protected
| Protected | Not protected |
|---|---|
| Peaceful assembly, marches, demonstrations | Blocking access to buildings (civil disobedience) |
| Signs, chanting, drumming, dancing | Incitement to imminent violence (Brandenburg v. Ohio) |
| Leafleting and pamphleting | True threats or fighting words |
| Symbolic speech: T-shirts, puppets, art | Trespassing on private property |
| Picketing (no permit required if orderly) | Destruction of property |
The government can impose "time, place, and manner" restrictions that are content-neutral and narrowly drawn. A permit can be required for large gatherings in certain public spaces. The government cannot restrict you based on the content of your message.
"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."
Supreme Court, De Jonge v. Oregon (1937)
When can police order you to disperse?
Only when a group has become violent or poses clear danger of imminent violence. Loud protest is not grounds for dispersal. Supporting an unpopular cause is not grounds.
Individual crimes by some protesters do not make the entire assembly unlawful. A dispersal order must be audible to the entire crowd, and reasonable time to comply must be given.
Your right to record police
Seven federal circuits have upheld the First Amendment right to record police: 1st, 3rd, 5th, 7th, 9th, 10th, and 11th. The 4th Circuit (2024) ruled livestreaming a police traffic stop is protected. The 1st Circuit upheld the right to secretly audio-record police. The Supreme Court has not directly ruled but has declined to take cases that would overturn these rulings.
DHS says otherwise
DHS spokesperson (December 2025): recording law enforcement "sure sounds like obstruction of justice." Secretary Noem (July 2025): called videotaping agents "violence against DHS agents." ICE agents told a community observer in Portland they were putting her on a "domestic terrorist watch list" for recording them.
A federal judge ruled the DHS policy unlawful in January 2026. You have the right to record. They do not have the right to threaten you for it.
What the law says
- 7 federal circuits: recording police is protected speech
- 4th Circuit: livestreaming is protected
- 1st Circuit: secret audio recording is protected
- Federal judge: DHS intimidation policy is unlawful
What DHS is doing
- Calling recording "obstruction of justice"
- Calling videotaping "violence against agents"
- Putting observers on "domestic terrorist" watch lists
- Using facial recognition on community observers
If you are arrested at a protest
Do not resist physically. State your name if asked. You have the right to remain silent beyond that. You have the right to an attorney. Ask for one and stop talking.
Do not consent to a phone search. Police need a warrant to search your phone (Riley v. California, 2014). Say: "I do not consent to a search of my phone."
Document everything. Badge numbers, time of arrest, what was said, who witnessed it. Write it down as soon as possible. Contact the National Lawyers Guild legal hotline or your local ACLU.
- 33%+
- of 2025 protest arrests: charges dropped
- 1,583
- J6 defendants pardoned
- 93%
- of 2020 BLM protests had no violence
- 59
- anti-protest laws enacted since 2017
ProPublica/Frontline examined 300 anti-ICE protest arrests in 2025. More than one-third collapsed: charges dropped, cases dismissed. Border Patrol chief Bovino instructed agents: "Arrest as many people that touch you as you want to. Those are the general orders, all the way to the top."
59 laws in 23 states
59 anti-protest laws enacted across 23 states since 2017. 384 bills introduced across 45 states. Only Hawaii, New Mexico, Maine, Vermont, and Delaware have no proposed or enacted bills.
| Program | Amount |
|---|---|
| Tennessee | 7 |
| Oklahoma | 6 |
| Louisiana | 5 |
| North Dakota | 5 |
| South Dakota | 4 |
| Florida | 3 |
| Texas | 3 |
| Georgia | 3 |
Source: ICNL US Protest Law Tracker. 16 states passed laws specifically targeting environmental protesters.
Common provisions: new "unlawful assembly" crimes, felony penalties for blocking traffic, stripping public benefits from convicted protesters, and driver immunity for hitting protesters with cars. Sixteen states passed laws targeting environmental protesters specifically.
Protect yourself digitally
Digital Security Checklist
| Before the protest | During | After |
|---|---|---|
| Back up your phone | Use Signal for communications | Review and delete photos with identifying info of others |
| Set a strong passcode (not face/fingerprint) | Turn off location services | Change passwords if phone was seized |
| Write lawyer's number on your arm | Use airplane mode when not recording | Check for new apps or profiles on your device |
| Enable disappearing messages | Do not unlock your phone for police | Report any surveillance to ACLU or NLG |
Government surveillance at protests includes facial recognition, license plate readers, and geolocation data subpoenas. The FBI issued a request (November 2025) for AI-powered drones with facial recognition. ICE agents used Mobile Fortify facial recognition on community observers.
What you can do
- Know your rights before you go. Print the ACLU Know Your Rights card. Save a lawyer's number in your phone and write it on your arm.
- Become a legal observer. The National Lawyers Guild trains volunteers to monitor and document government conduct at protests. Open to anyone.
- Fight anti-protest laws in your state. The ICNL tracker shows what bills are pending where you live.
- Record everything. You have the right. Seven circuits say so. A federal judge says so. Exercise it.
Primary Sources
- ACLU: Know Your Rights at Protests
- ICNL: US Protest Law Tracker
- ProPublica: Caught in the Crackdown
- National Lawyers Guild: Legal Observer Program
- PBS: Right to Record ICE
- State of Surveillance: Protest Without Surveillance
Last updated May 29, 2026