Protest politics appears to be reaching new heights not seen since the 1960s. Protests on Wall Street, at public universities and in private places have become a favored method for addressing social issues. At the Mall of America in Bloomington, Minnesota, Black Lives Matter protestors occupied a shopping mall to bring attention to their cause. Many were charged with trespassing. Some of those charges were dismissed, but some defendants will be tried for criminal acts. At the University of Missouri, a group of students set up an encampment on campus. Tim Wolfe, the University president, subsequently resigned. Two University employees later attempted to deny a photojournalist access to the encampment, citing safe space concerns. No action was taken against the students, but the actions of the employees are under intense scrutiny.
The Nuance of the First Amendment
The law of protests is ever evolving. Most Americans are familiar with the First Amendment, which generally protects freedom of speech and of the press. Most Americans would also assume that these protections do not extend to private property. But as with many laws, the First Amendment is nuanced.
Private property: Individuals may have a First Amendment right to protest on private property, like the Mall of America, if that property has become a public forum through the actions of the property owner or if there is sufficient connection to a government entity. Conversely, the U.S. Supreme court has said that “the First Amendment does not guarantee access to property simply because it is owned and controlled by the government.” The analysis turns on whether the space is a public forum. Some state courts, notably in California and New Jersey, have held that the First Amendment protects speech on private property that is widely open to the public, e.g., shopping malls. Most states, most recently Minnesota courts in the Mall of America case, have held that private property is not covered by the First Amendment. Property owners who regularly allow leafleting and protest or who have public tenants (like post offices, congressional offices and the like) may subject themselves to the possibility of protests.
Government property: On federal or state property, the First Amendment generally guarantees the right to speak and the right of journalists to cover events subject to reasonable time, place and manner restrictions. The government may impose reasonable times as long as it doesn't discriminate based on the content of the speech or require permitting to prohibit competing protests at the same time. The government also may establish “buffer zones” for protests. To be upheld, these restrictions cannot be based on the viewpoint of the speaker and must be in place to protect a sufficiently justified government interest (e.g., safety) and must be tailored to address the interest.
What If Protestors Appear at Your Door?
The Mall of America decision offers some practical guidance: 1) If you are aware of the protest in advance, attempt to communicate with protest organizers to keep disagreements peaceful, 2) clearly advise protestors of your policy on speech and document that you made the policy clear and 3) give protestors an opportunity to disperse before asking law enforcement to begin arrests.
