With very few exceptions, government cannot limit protest on public property because of the protest’s viewpoint. Rather, government must be neutral among messages and messengers. Protests can be controversial, unpopular, offensive, or even hateful. Protesters can speak in support of illegal activity, violence, or even the overthrow of our government. The First Amendment does not protect a few narrow categories of expression, including, most importantly, “incitement,” meaning speech intended and likely to cause imminent law-breaking. For example, the First Amendment does not protect a speaker who urges an angry crowd to immediately attack someone or destroy their property.
“Fighting words” are also unprotected. These are words directed at a particular person, face-to-face, which might provoke an ordinary reasonable person to violence, such as by calling them an offensive name and then “clucking like a chicken.” This narrow category of speech does not include political messages directed at a general audience. On the other hand, an especially provocative and angry face-to-face shouting match between a protester and a bystander might be seen by a police officer as fighting words and give rise to arrest.
Sometimes, when a protester expresses a controversial message, a person who hears the message may react violently against the protester. In such situations, it is the job of the police to protect the protester’s right to free speech and their physical safety, and to arrest or otherwise control those who seek to disrupt or attack the protester. A Chicago police General Order allows police to silence a protester in such circumstances only if all available police resources reasonably available have been deployed, efforts to control the hostile audience have failed, and there remains a threat of imminent violence.
When one group disagrees with the message of another group, the First Amendment protects the right to counter-protest at the site of a protest. Police must ensure that the two opposing groups do not silence or harm each other. Police may do so by separating the opposing groups, but should allow them to be in the same general vicinity.
