There Is No Constitutional Right to “Protest”

the “Right” is to “…Peacefully Assemble and to petition the Government…”

In the heated discourse surrounding civil unrest and public demonstrations, a common phrase echoes through media and activism: the right to “peacefully protest.” Contrary to popular belief, this term appears nowhere in the United States Constitution. The document does not grant a specific right to protest at all. Instead, the First Amendment protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. This precise language underscores a limited safeguard, one focused on orderly gatherings rather than disruptive actions often labeled as protests.

The Constitutional Text

The distinction matters. Assembly refers to the act of coming together for a common purpose, such as discussing issues or expressing views collectively. However, it must remain peaceable, meaning without violence, coercion, or infringement on others' rights. The Supreme Court has consistently interpreted this to exclude activities that escalate into chaos. For instance, in De Jonge v. Oregon (1937), the Court ruled that states cannot prohibit peaceable assemblies for political purposes, emphasizing that such gatherings are essential to democratic discourse.

Supreme Court Interpretations

Consider what falls outside this shield. Riots, which involve property destruction or physical harm, receive no constitutional cover. The Court in Edwards v. South Carolina (1963) overturned convictions for a peaceful civil rights march on statehouse grounds, noting the absence of violence or threats. In contrast, when assemblies turn destructive, such as burning buildings or looting, they transform into criminal acts like arson or theft, unprotected by the First Amendment. Similarly, blocking roads or highways disrupts public safety and commerce, allowing governments to impose content-neutral regulations under the time, place, and manner doctrine. In Hill v. Colorado (2000), the Court upheld a law creating buffer zones around health facilities to prevent obstruction and intimidation, as it served significant government interests without targeting speech content.

Boundaries of Protected Assembly

Intimidation and threats also cross the line. The right to assemble does not extend to coercive behavior that instills fear. In Counterman v. Colorado (2023), the Supreme Court clarified that true threats of violence fall outside First Amendment protections, as they are not mere expression but actionable harm. This builds on earlier precedents like Feiner v. New York (1951), where a speaker's arrest was upheld because his words were likely to incite violence among listeners. Even without physical force, assemblies that harass or bully others forfeit their safeguarded status.

Screaming obscenities presents another boundary. While speech enjoys broad protection, certain utterances qualify as “fighting words,” which provoke immediate violence and thus lack constitutional shelter. The Court established this in Chaplinsky v. New Hampshire (1942), affirming that profane insults directed at individuals can be regulated. Modern assemblies filled with amplified vulgarities or disruptive noise may violate local ordinances, as seen in Ward v. Rock Against Racism (1989), where sound level restrictions were deemed valid to protect public welfare.

Current Events in Minnesota: A Case Study in Chaos

Minnesota has become a flashpoint for anti-ICE actions, illustrating how assemblies can devolve from peaceable to chaotic, teetering on and even into insurrection. ICE operations in the state are completely constitutional, rooted in federal authority over immigration enforcement as granted by Article I, Section 8 of the Constitution and affirmed by the Supreme Court in Arizona v. United States (2012), which recognized the appropriateness of federal actions in this domain. Thousands braved subzero temperatures in Minneapolis for "ICE Out" rallies, demanding federal immigration agents depart amid the Trump administration's crackdown. Protesters marched in icy conditions, with religious leaders and communities chanting for solidarity, while hundreds of businesses shuttered in a statewide general strike on January 23. However, tensions escalated with the fatal shooting of 37-year-old Alex Jeffrey Pretti by a federal agent in south Minneapolis, the second such incident this month. Witnesses described Pretti, an armed man, approaching agents, leading to claims of incitement by state leaders like Tim Walz, urged crowds to "keep causing trouble”. Many argue Minnesota officials fueled disorder by refusing cooperation with ICE and encouraging interference, turning protests into hazardous confrontations where participants risk violence or death. These actions, involving armed approaches, disruptions, and defiance of federal authority, teeter on insurrection by challenging government operations through force and coercion, echoing historical uprisings unprotected under the Constitution.

Key Principles and Framers' Intent

These precedents illustrate a core principle: the right to assemble peaceably demands respect for law and others' freedoms. It permits standing in designated areas, holding signs, or quietly voicing opinions, but only if these actions avoid trampling rights like free movement or safety. The moment an assembly grows loud enough to disturb peace, destructive enough to damage property, or threatening enough to coerce, it devolves into lawlessness. Brandenburg v. Ohio (1969) refined this by protecting advocacy unless it incites imminent illegal action, reinforcing that mere words without peaceable conduct offer no immunity.

This interpretation aligns with the Framers' intent to foster orderly civic engagement, not anarchy. Governments retain authority to enforce permits, designate zones, and intervene when public order falters, as long as measures remain viewpoint-neutral. In Clark v. Community for Creative Non-Violence (1984), the Court upheld bans on overnight camping in parks during protests, prioritizing park preservation over expressive convenience.

Ultimately, the Constitution promotes dialogue through calm assembly, not unchecked disruption. Mislabeling riots or blockades as “peaceful protests” dilutes this vital right. Citizens must exercise it responsibly, or risk lawful consequences. By adhering to peaceable standards, Americans honor the document's true protections while advancing their causes effectively.

Michael J Badagliacco, “MJB”

Michael is a father of five, grandfather of three, U.S. Air Force Veteran, international recording artist, Editor-in-Chief of the Colorado DOGE Report and USA Liberty Report, a Citizen of Montrose, CO, passionate about Montrose, Colorado, the United States of America, Freedom, Liberty and the founders’ genius in crafting the Constitution.