Civil protest is occurring with increasing frequency in Colorado and nationwide, prompting many to ask about the rights of protesters and free speech in general.
Is all speech protected? Where can I legally protest in Colorado? Can I get arrested for protesting?
Speech Activities and the First Amendment
The right to protest is constitutionally protected by the First Amendment. The First Amendment covers all forms of communication including making speeches, handing out flyers, holding or attending rallies, carrying posters, picketing, and participating in peaceful demonstrations.
The government can establish rules regarding when and where some speech activities occur, but it can’t regulate the content of speech or enforce rules that favor a particular side of a controversial speech topic.
Time, place or manner restrictions are used to limit when, where and how speech activities may occur, but restrictions must be neutral to content and serve a significant public interest while leaving open alternative channels of speech or communication.
Time, Place and Manner Restrictions
One great illustration of time, place and manner restrictions with Colorado ties is the 2000 Supreme Court Case Hill vs. Colorado.
In 1993, a Colorado statute limited speech activities within 100 feet of all health care facilities. Specifically, it was illegal for a speaker or demonstrator to “knowingly approach” within eight feet of another person, without that person’s consent, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling…with such other person…”
These restrictions were challenged on a constitutional basis, but the statute was upheld by a 6-3 Supreme Court majority opinion that concluded (among other things):
- The State has a compelling interest in protecting patients from unwanted speech while entering or exiting a health care facility. Furthermore, people have a right “to be let alone.”
- So long as time, place and manner legislation is content neutral (not restrictive of what’s being said) the state can enforce certain rules.
- Free speech activities remain possible despite the statute in question. Protesters and demonstrators can still yell, shout, picket and gather so long as it’s not within eight feet of patients.
This case illustrates several other questions people may have about protesting in Colorado. For example, Where can I legally protest? Aside from medical facilities, are there other place restrictions?
Protest Location Limitations
Speech activities are permitted in public forums (for example, public parks, streets, sidewalks, plazas, etc.). However, speakers can’t block pedestrians, business entrances or traffic. To simplify, speech activities can’t interfere with the normal use of a public space.
Conversely, speech activities on private property can be limited—if the property owner asks demonstrators to leave, they must leave. If demonstrators refuse to vacate the property, they will be subject to arrest and prosecution.
If you wish to protest in a shopping center or business park, it’s wise to get permission from the owner before the demonstration. Permits may also be required, depending on the size of the protest and where it takes place.
In Colorado, a permit may be required if:
- A march, parade or event does not stay on the sidewalk and is likely to block traffic or require a street closure
- A large rally requires the use of sound amplifying devices
- A demonstration takes places at certain designated parks or plazas
Denver requires an application for public assemblies of 50 or more people in public parks or plazas. It is recommended that applications are filed five to seven days in advance to give city officials and relevant agencies the opportunity to prepare accordingly for “public safety and services.”
Free Speech: What’s Protected?
What about controversial speech topics? Can protesters be silenced or arrested because of language some might consider offensive?
Technically, no. The First Amendment prohibits speech restrictions based on content; however, the Hill case demonstrates that police and government can and do place certain nondiscriminatory restrictions on certain speech activities.
Furthermore, some speech isn’t protected at all. For example, speech that advocates illegal activities (such as looting, intentional harm to others, etc.) is not protected if those actions are intended to be carried out, but only if the actions are likely to occur.
Protesters can be charged with inciting a riot if speech encourages a group of five or more persons to act—this is a Class 1 misdemeanor in Colorado.
Free Speech on College Campuses
In 2017, Colorado passed a bipartisan bill striking down speech restrictions on public college and university campuses.
Prior to Senate Bill 17-062, students could only exercise speech activities in designated “free speech zones,” and demonstrators were required to obtain advanced permission—in some cases, the criteria for which applications were evaluated was not publicly available, which spurred organizations like the ACLU of Colorado to intervene.
While the new law makes it easier for students to exercise their First Amendment rights, institutions of higher education can still set time, place and manner restrictions. For example, colleges and universities “shall not impose restrictions on the time, place and manner of student expression…unless the restrictions:
- Are reasonable
- Are justified without reference to the content of the speech
- Are narrowly tailored to severe a significant government interest
- Leave open ample alternative channels for communication
Can I Get Arrested for Protesting?
The short answer is, yes, even if the protest is peaceful.
Last year, 10 protesters staging a sit-in at Republican Sen. Cory Gardner’s Denver office were arrested for protesting against the Better Care and Reconciliation Act. Many of the protesters were disabled and confined to wheelchairs.
The property owner claimed the protest violated the building lease and ordered the group to leave. When the protestors refused, the group was arrested; however, the charges were later dropped at the request of Sen. Gardner.
In 2015, several people marched in downtown Denver to protest police brutality. Eleven people were arrested. Two of the arrests were felonies for assault on police and robbery. The rest of the arrests were misdemeanors for resisting police, disobedience of lawful orders, obstructing roadways, and interference.
Protest-related arrests not typically made because of the speech activities themselves, but because demonstrators violated some other law. Anyone can lawfully participate in a protest, regardless of content, so long as they’re mindful of when, where and how their speech activities are conducted.
Of course, there are situations in which tensions escalate and protestors are unfairly arrested and wrongfully charged with crimes. If you believe you’re facing wrongful criminal charges for lawfully exercising your First Amendment rights, you need an experienced criminal defense lawyer on your side.
The Denver criminal defense attorneys at Wolf Law understand the impacts a misdemeanor or felony charge can have on a person’s life. If you’re facing criminal charges, please call us today at 720-479-8574 or contact us online to schedule your personal consultation.