With protests against racism and police brutality occurring throughout the country, citizens must know how they are protected by the First Amendment whether they are joining demonstrations or covering them.
Through advocacy, education and defense, NEFAC is protecting the First Amendment right to assembly and informing all New Englanders of their constitutional freedoms.
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New England First Amendment Coalition Executive Director Justin Silverman spoke with Lia Ernst, a NEFAC board member and senior staff attorney at the ACLU of Vermont, about our constitutional rights during political demonstrations. A summary of what Lia explained is below.
NEFAC Executive Director Warns of Danger to First Amendment Rights After Mass. National Guard Activation
Intimidation and the possible use of force could threaten protesters’ First Amendment rights, said NEFAC’s Justin Silverman. “[Protesters] need to stay safe and really need to take into account that, anytime you have a law enforcement presence that there is at least the potential for protesters to get hurt or to have their rights violated in some way.”
Victor M. Hansen, a law professor at New England Law Boston, explains the constitutional authority allowing the federal government to send law enforcement agents to local protests and whether such deployment could occur in cities throughout the region.
Lia Ernst, a NEFAC board member and senior staff attorney at the ACLU of Vermont, offered the following general guidance on protest-related issues in the Know Your Rights video above:
What is a Peaceful Assembly Under the First Amendment?
Peaceful assemblies are those where there is not a clear and present danger of riot, disorder, interference with traffic on public streets or an immediate threat to public safety or order.
Are Police Allowed to Break-Up a Peaceful Assembly or Arrest a Non-Violent Protester?
Should occur as a last resort and only if a lawful order is violated.
How Should Citizens Respond to the Threat of an Arrest?
• Remain calm.
• Keep hands visible.
• Ask if you are being detained. If you are not being detained, simply walk away.
• Never physically resist an arrest even if it is an unlawful one.
• Ask the officer why you are being arrested, but otherwise stay silent until a lawyer can represent you.
• Do not consent to searches.
• When possible, make a detailed record of the incident including the arresting officer’s name, badge number, patrol car number and the names of all witnesses.
Can I Record Police Activity?
Yes, so long as you are lawfully in a public place and recording events that are in plain view. Police can ask you to stop recording if you are actually interfering with their legitimate work, but otherwise you are free to record.
Can Police Confiscate Cameras or Delete Videos or Images?
No. A warrant is needed to confiscate or search devices. If a device is taken during an arrest, police cannot delete the material on that device under any circumstances.
Are There Special Protections for Journalists?
There is a fundamental First Amendment right to cover protests. Curfews should make exceptions for the press given the essential role journalists play. Under virtually no circumstances can a journalist be prohibited from reporting or publishing what has been seen.
Suggestions for Journalists Told to Leave Public Areas?
• Express clearly and repeatedly that you are a member of the press.
• Have credentials readily available and visible.
• If there is a curfew that excludes reporters, keep with you a copy of that order so you can point to the exception for press.
• Keep your recorder or camera running to document what may be an unlawful arrest.
The dialogue above and in the “Know Your Rights” video is intended as general information for journalists and other citizens and not as legal advice. Individuals should seek the advice of counsel regarding specific situations or issues.