The First Amendment on the Ground
How and why the law of public protest often fails to protect protesters' rights - and their safety.
One of the topics that is not in my recently published book, Trump 2.0: Executive Power and the First Amendment, is public protests. There are a few reasons for that. The administration’s surging of federal agents into “blue” cities and states, though predictable, was not in full swing while I was putting the book’s materials together. The book also focuses primarily on the First Amendment effects of Executive Orders. President Trump’s orders in this area relate to federalizing and deploying the National Guard. Although the orders affect First Amendment rights, their validity rests primarily on principles of statutory interpretation and the scope of executive power. Last, the book is organized around and facilitates the teaching of discrete First Amendment doctrines. In the context of public protest, as we will see, the law is harder to organize around doctrine.
Despite the omission, what is happening in Minneapolis and other American cities raises critically important First Amendment concerns relating to public protests. I’ve been asked by reporters about the scope of protesters’ rights, the limits of federal agents’ powers, and the potential remedies for First Amendment violations. The killing of Renee Good in Minneapolis has obviously heightened concerns about how the government has responded to public protest and dissent. So, I thought I would summarize some of the recurring First Amendment and other issues relating to protest policing and First Amendment rights (and remedies). Some of this discussion draws on my book, Managed Dissent: The Law of Public Protest (2023) and some on articles I’ve published (collected at the end of the post).
First Amendment Protest Rights
The First Amendment’s text refers not just to freedom of speech but also the right to “peaceably assemble” and to “petition” government for a redress of grievances. In addition, it includes the “freedom of the press.”
While all of these rights are implicated during protests and demonstrations, the Supreme Court has never developed freestanding “assembly” or “petition” doctrines. Instead, over time it has collapsed these rights into a general “freedom of expression.” The Court has interpreted the First Amendment as protecting the right of individuals and groups to organize, participate in, and support public protests. The right of the public and the press to observe and report on public protests is also well established, both as an exercise of freedom of speech and freedom of the press. Although the Supreme Court has not addressed the issue, several federal courts of appeals have also held that the First Amendment protects the right to record law enforcement and protest activity, so long as these actions do not interfere with arrests or other law enforcement operations.
As the recording example shows, protest rights are not without limits. For example, governments can require protesters to obtain a permit prior to demonstrating. Most protest events are subject to permitting requirements. However, smaller gatherings, such as many recent anti-ICE community watch events, are not generally covered by local permitting ordinances. Courts have also held that protesters must be afforded the right to demonstrate in response to spontaneous events. Thus, a permit requirement that requires significant advance notice may violate the First Amendment, if applied to a spontaneous protest of an event like the killing of Renee Good. One reason for requiring a permit is to identify those who are responsible in the event of a violation. The reality, as Black Lives Matter and other recent protests have shown, is that governments find it very difficult to enforce permit requirements when protesters gather spontaneously. When people enter public spaces in large numbers all at once, permits are not a real constrain on demonstrating.
The Court has recognized broad protest rights in what First Amendment doctrine refers to as “traditional” public forums. This category includes public streets, parks, and sidewalks. Protesters may have access rights regarding other places where government has intentionally allowed the public to engage in expressive activities, including plazas and the like. In these forums, governments can impose content-neutral time, place, and manner restrictions (including permitting requirements) on protesters. For example, laws and ordinances can place some limits on the time of protest events, the proximity of protesters to public buildings, and what protesters can lawfully carry in terms of signs and placards. These regulations are valid if they are “narrowly tailored” to further important government interests and preserve “ample alternative channels of communication.” The validity of such restrictions often turns on the context of the protest event, including the size of the crowd and the local geography.
At a minimum, time, place, and manner regulations must be neutrally applied to all speakers and ideas and should not burden more speech than necessary to further the government’s interests. Government cannot target protesters based on their messages or beliefs, or for exercising their right to protest. And they cannot simply shut down or shut off all public protest in an area, for example near federal government buildings.
While it protects the right to gather peaceably and communicate, the First Amendment does not protect acts of violence or vandalism. Nor does it extend protection to actions that obstruct highways or streets. It does not generally protect lawbreaking, in the sense that one does not have a First Amendment right to engage in conduct as a means of protesting the law itself. Such acts can constitute a form of civil disobedience or moral objection to law, but those who engage in them can be held liable. Protesters cannot communicate “serious” threats of violence. Nor can they call for imminent riots or other forms of violence when such violence is likely to occur. Again, whether protesters have run afoul of such limitations is heavily context-dependent. Anti-riot and other public order laws are troubling in terms of their breath and ambiguity.
In sum, protesters’ First Amendment rights are nominally and formally quite robust. However, the reality for protesters is that they must typically run permitting gauntlets and are subject to space limitations and a raft of time, place, and manner regulations. Perhaps the most serious challenge to their rights comes in the form of methods of protest policing.
The Problem of Protest Policing
We need first to put what we’ve been seeing in terms of agents’ actions in some historical perspective. In the U.S., aggressive protest policing, by which I generally mean resort to force as a default rather than last resort, has been a challenge for those seeking to exercise peaceable assembly and protest rights for many decades. Indeed, the problem has been so perpetual and acute there is an entire area of social science devoted to it.
Social scientists who study protest policing have identified the use of what they call “escalated force” policing. This mode of policing was common during the 1950s and 1960s. For a brief period, some police departments experimented with a method known as “negotiated management,” which entailed efforts to cooperate with protesters rather than baton them into submission. That experiment did not last long. For a variety of reasons, including the general response to the September 11, 2001 terrorist attacks and the distribution of surplus military equipment to local police forces, law enforcement moved toward a “command and control” method of protest policing. That method relied on demonstrations of as well as actual resort to force, strict limits on protesters’ movements, and the general militarization of public places used for protest events.
Aggressive protest policing is a longstanding problem, and not one unique to recent events. Indeed, one could trace this problem at least as far back as the 1968 Democratic National Convention in Chicago, which devolved into a melee between law enforcement and protesters. Police physically assaulted demonstrators and used other violent means to restore order. The 1999 World Trade Organization demonstrations in Seattle were similarly marred by state and local law enforcements’ resort to force - even against lawful and peaceful demonstrations. The same pattern recurred during the 2020 Black Lives Matter protests, during which state and local law enforcement (and, at President Trump’s direction, some federal agents) used pepper spray, projectiles, physical force, and other aggressive methods against protesters who were, again, predominantly engaged in lawful forms of protest ostensibly protected by the First Amendment. These abuses were well documented and led, in some cases, to large settlements in civil rights lawsuits.
As recent events in Los Angeles, Chicago, Portland, and Minneapolis show, aggressive protest policing is back in the news. As I warned in a 2025 article, responding to civil unrest with federal interventions will only exacerbate this problem. During his first term, President Trump threatened to invoke the Insurrection Act, which authorizes deployment of active duty military personnel to areas of unrest in narrow circumstances, and mused to his Secretary of Defense about shooting protesters in the legs. The writing was clearly on the wall that if he won a second term, President Trump and his administration would deal harshly with protesters.
President Trump is once again threatening to invoke the Insurrection Act. He has already federalized National Guard troops and authorized “surges” of ICE and other federal agents to local communities. Federal prosecutors meanwhile have been bringing charges, often unsuccessfully, against those protesting ICE’s tactics. The federal government has aggressively intervened in ways that upset the federal-state balance regarding protest policing.
Much of the analysis of President Trump’s orders to deploy National Guard members, military personnel, and ICE agents to cities has focused on separation of powers concerns and interpretations of federal law. However, insofar as protesters are concerned, these actions are having a significant suppressive effect on the ground. ICE agents are now the primary “law enforcement” personnel charged with policing the demonstrations against their presence and authority. State and local law enforcement training has clearly fallen short and failed to address police abuses of protesters’ rights. But military personnel and federal agents are not law enforcement personnel. They are not trained in protest policing methods or preservation of First Amendment rights. As bad a state and local law enforcement have been on these scores, federal agents may be even worse.
Small wonder, then, that we have been witnessing incidents of escalated force against protesters, including the use of pepper spray and projectiles against protesters exercising First Amendment rights. We now have several instances in which law enforcement have used "lethal” rather than “less-lethal” means of force. They have brandished and used handguns and other firearms against protesters. Agent Jonathan Ross shot and killed Renee Good.
The surge of federal agents, under military-sounding missions, has predictably - and one may fairly conclude purposefully - escalated tensions on the ground. As two federal district courts have now concluded, federal agents have engaged in egregious violations of protests’ First Amendment rights. As one court wrote in an order granting a preliminary injunction:
Plaintiffs have established an ongoing, persistent pattern of Defendants’ chilling conduct. The dozens of declarations by similarly situated nonparties detail similar, if not more egregious, injuries to rights suffered at the hands of federal law enforcement officers for engaging in protected activity.
I’ll talk about remedies for these violations later. But the current situation highlights something academics who study protest policing have known for some time. Whatever the text of the First Amendment or Supreme Court precedents indicate regarding free speech and other protest rights, it is the manner in which governments use their broad discretion to police demonstrations that determines whether those rights are preserved. Although recent decisions suggest there are limits to deference, courts are generally inclined to give law enforcement broad latitude to preserve public safety and order. Law enforcement generally have at their disposal not just various forms of “less lethal” weaponry but a long list of “public order” laws including breach of peace, disorderly conduct, failure to disperse in response to a lawful order, etc. they use to disperse and suppress protests. In the most recent conflicts, the federal government is invoking laws that criminalize interfering with or “obstructing” federal agents to paint all forms of anti-ICE protest as forms of unlawful conduct.
As critical as it is to preserving First Amendment rights, the law of protest policing is messy and indeterminate. Public order laws are often vague and overbroad, effectively criminalizing what ought to be protected protest activity. Law enforcement officers and, now, federal agents (and perhaps even military personnel) do not operate with impunity. But the limits on their power are difficult to define with clarity and, in any event, often turn on courts deferring to official recitations of “disorder,” “officer safety,” and “mission.”
In short, especially as it pertains to public protest, the First Amendment on the ground is not the same as the one presented in paeans to protest history or casebook summaries. While anti-ICE protesters have been able to gather and make their voices heard, sometimes in large demonstrations, their ability to communicate safely and effectively depends substantially on how their lawful actions are policed. If, as the Good shooting suggests, there will be little or no accountability even for uses of lethal force, protesters now face yet another daunting obstacle to exercising their First Amendment rights.
Remedies?
In the event law enforcement, federal agents, and military personnel violate First Amendment rights, one might think there must be effective remedies. But this is another area where First Amendment rights can seem contingent and weak. In several recent lawsuits, protesters have alleged that federal agents have engaged in unlawful and abusive forms of protest policing. In one lawsuit, several reporters alleged that agents had targeted them when shooting projectiles and pepper spray. These lawsuits have raised both First Amendment claims and Fourth Amendment claims based on allegations that agents retaliated against protesters and journalists for their speech and engaged in unlawful uses of force.
Injunctions
Plaintiffs in lawsuits can seek injunctive relief in the form of orders prohibiting agents or law enforcement from engaging in the unconstitutional behavior. A few courts have granted such relief.
However, there is some evidence that ICE has not complied with the injunctions. One obstacle to fashioning and enforcing injunctive relief is that the federal government has not been providing truthful information to the courts regarding its actions. For that reasons, a district court in Illinois ordered ICE to report to it on a weekly basis, in order to better understand and constrain its use of force during peaceful and lawful protests. An appeals court reversed that order, concluding that it interfered with the executive branch’s enforcement of immigration laws. Meanwhile, Secretary Noem has flatly denied that ICE is using the tactics one can clearly see agents using in numerous videos. Courts can issue injunctions in an effort to limit agents’ abuses, but some have been reversed on appeal or stymied by recalcitrant officials.
Civil Damages
What about suing the agents for civil damages based on violation of constitutional rights? As I explained in this article, such claims are difficult to win when brought against state and local law enforcement. The most significant obstacle is a doctrine known as “qualified immunity,” which absolves officers from damages unless the law at the time they acted was “clearly established” - a phrase the Supreme Court has narrowly interpreted to mean that the officer’s actions (1) had previously been held to be unlawful (2) by a court in the relevant jurisdiction (3) under essentially the same set of facts. Needless to say, such unicorns often cannot be found.
The problem is even more acute when it comes to the federal agents performing the “protest policing” in Minneapolis and other cities. The Supreme Court has effectively eliminated a cause of action for damages against federal officers for constitutional violations. Although no federal law currently authorizes such suits, the Court held in a 1971 decision that they could be brought directly under the Constitution. But ever since, the Court has slowly slammed the door shut on such actions. As a result, plaintiffs like Renee Good’s widow have no effective recourse in terms of suing the agent who shot her three times for damages.
Criminal Liability
What about criminal liability? Surely Agent Ross is potentially liable under criminal law for a shooting that resulted in someone’s death. It’s quite possible Ross will never face this form of accountability either.
Contrary to statements made by Stephen Miller and others in the administration, ICE agents do not have “absolutely immunity” from legal liability when they shoot protesters or others. Agents must comply with federal laws and can be prosecuted for federal crimes. The problem is that at the moment, both the Federal Bureau of Investigation and the Department of Justice have already announced that they are unwilling to proceed against Agent Ross. Some federal prosecutors have resigned rather than investigate and prosecute Good’s widow for [fill in the federal crime]. But that action has nothing to do with holding the agent who fired the weapon responsible.
That leaves only the uncertain route of having state prosecutors pursue charges. They could, although so far the administration has refused to allow local officials access to crucial evidence in the case. Even if they did bring state charges, Agent Ross and other ICE agents would certainly try to remove their cases to federal court, where they would assert an immunity from state prosecution as federal officers. The result in such a case is uncertain, but certain not to come in the near future.
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The story we often tell about public protest rights is that they are venerated and robustly protected. The reality, as current events show, is that protest rights are contingent on a messy law of public protest and a system in which law enforcement and federal agents exercise broad discretion and are subject to few constraints. Some federal courts have recently stepped in to constrain agents’ abuses, but their orders do not appear to be affecting behavior on the ground.
Various reforms have been proposed, including improvements to protest policing training, the elimination of qualified immunity, and enactment of federal laws recognizing civil damages claims against federal agents. But at the moment, those exercising their protest rights in Minneapolis and other cities are doing so without the benefit of a robust system of constitutional and legal rights. Once again the current climate has shown that First Amendment rights cannot be presumed or taken for granted. Rather than denigrate them for being “disruptive” or “disrespectful,” we ought to be grateful to protesters for their fortitude and commitment.
Public Protest: Bibliography
Speech Out of Doors: Preserving First Amendment Liberties in Public Places (2009)
Public Protest and Civil Unrest, 67 Ariz. L. Rev. _ (forthcoming 2025)
Public Protest and Governmental Immunities, 97 Southern Cal. L. Rev. 1583 (2024)
Speech and Spatial Tactics, 84 Tex. L. Rev. 581 (2006)