The Constitution and Protesting

A friend and I are having a little debate about the Constitution and protests. He says that if there is a protest where the protesters got the required permits and another group counter-protests that the counter-protesters are acting unconstitutionally. I disagree.

Let’s take it one step further and assume the counter protesters start getting unruly with the scheduled protesters, does that change the constitutionality of the counter-protesters? (I’m not talking about “disturbing the peace” or anything like that, this is strictly about the Constitution.)

I was always under the impression that only the government be charged with taking away one’s constitutional rights.

Also, he seems to think that the first ammendment only applies to assembling against the government, and therefore you have no right to protest say, an abortion clinic or a grocery store that refuses to unionize. The way I understand it is that so long as you keep off of the clinic’s or store’s property and you don’t impede people from entering or leaving the premises that you are ok. He seems to think that anytime there is a protest, there has to be a permit, and if no permit exists, the clinic or store can call the cops and have you removed.

Any help those of you smarter than I (read: all of you) can give would be much appreciated. And if you have links, that would be even better so I can rub this in his face! Unless I’m wrong, in which case I’ll thank you all for pretending this thread never happened :slight_smile:

Not unless they get so unruly that they enslave the protestors. The Constitution generally restricts the government, not private individuals notacting in concert with the government, subject to the exception of the 13th Amendment.

Essentially correct, save the caveat mentioned above. The First Amendment restricts the government, not private citizens.

No, the right to freedom of speech applies to much more than merely criticizing the government, and the right to freedom of assembly applies to much more than merely protesting against it.

As covered by pravnik the Constitution is essentially silent on what private citizens may and may not do. It merely defines – and restricts – the powers of the government. So while a protest that doesn’t get the necessary permits might be illegal, depending on local law, it’ll never be unconstitutional. OTOH, the government might well itself commit unconstitutional acts in trying to deal with the private protest, such as limiting it to certain times or places (which, dpending on circumstances, could be a violation of the 1st Amendment’s guarantees of free speech and free association) or by beating heads (which, depending on circumstances, could be a violation of the 5th and 14th Amendment’s requirement that the government give due process before depriving anyone of life or liberty).


A counter-protest is also a constitutionally protected expression. Generally, if a protester is to be found liable for something, it is usually some other law, not the First Amendment. For example, anti-abortion protesters were charged under the Racketeering-Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §§1961-1968. Basically, the prosecution argued that the pro-lifers were using thuggish means to prevent individuals from exercising their rights (that is, entering abortion clinics for whatever reason). This – and other laws that the counter-protesters might be charged with violating – is not a constitutional principle but merely a violation of criminal law.

The issue then may become whether enforcing such a criminal law is in turn a violation of the counter-protesters’ constitutional rights. There again you have to apply another balancing test to see.

Generally, only the government or those acting in a governmental capacity can violate constitutional protections. However, there might be exceptions. I’m thinking particularly of cases in the segregation era in which private citizens acted to thwart individuals’ constitutional rights. But I can’t remember for sure exactly how those cases played out, so there might not be an exception there.

Although political speech is the type of speech that received the highest protection under the Constitution, the rights to assembly and free speech do not apply just to speech directed at the government. However, suppression of assembly and free speech rights is unconstitutional only if it is the government that’s doing the suppressing.

So, a shopping mall may bar you from expressing yourself whatever the issue, whether it’s the use of child labour for manufacture of sneakers sold there, or suppression of labor rights by employers there, or any kind of political speech. However, if the location is a public place under the Constitution, you can’t be stopped (except for certain, limited purposes, such as time and place restrictions for safety reasons) from saying anything, whether it has to do with protest against the government, or against Nike.