The Law of Public Protests, and the Right to Criticize Government

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Course Description

This program was recorded on September 19th, 2018

The First Amendment supplies important limitations on lawful interference with public protest, and important affirmative rights that enable protesters to speak informedly, effectively, and without interference from hecklers.

This doctrine is rapidly evolving to keep pace with the migration of public protests from town squares to the Internet and social media. Understanding these First Amendment and related rights are vital not only for protesters (and the journalists who cover them) to perform their important role in our democracy, but also for municipalities, government agencies, and government employees to avoid liability for violating them.

This course will cover the First Amendment and statutory rights applicable to every stage of a public protest, from information-gathering, protest-planning, site-selection, permissions and licensing, and performing physical and online protests. It will review government duties and liability, as well as issues arising from protests of private entities. It will also explore public-dissemination issues, including the rights of journalists and audience-members to record and disseminate recordings of protected expression.

All of these rights, duties, and limitations will be addressed from the perspectives of protesters, journalists, and government officials alike, with a focus on pragmatic issues and litigation tips for practitioners.



  • Patrick Kabat
    Patrick Kabat is a First Amendment lawyer with substantial practice experience in media and entertainment law. He has represented a marquee list of clients, including The New York Times, CNN, CBS, HBO, the ACLU, the Associated Press, and the Chicago Tribune in high-profile lawsuits in state and federal courts across the country.

    His practice focuses on high-profile civil and appellate litigation, and he regularly counsels clients on novel issues regarding constitutional law, defamation, privacy, right of publicity, freedom of information, and other content-related issues.

    A creative strategist, Patrick has successfully resolved content-related issues for a wide range of prominent clients, ranging from Hollywood studios to rock bands and mixologists. His experience litigating against government agencies makes him an effective advocate in white-collar criminal litigation and regulatory proceedings, and he has represented individuals and companies in regulated industries, defending enforcement actions and challenging unlawful regulations.

    Contact Patrick Kabat

      • 2 General Credits
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    1. SAY WHAT? The public’s rights of access to government information ensure informed protests.
      1. Records: The First Amendment access right, FOIA & state public-records laws.
      2. Sources: Speech from government employees; speech from litigants & lawyers.
    2. WHERE TO SPEAK: The public’s rights to protest near the subject of its criticism.
      1. Physical Space: Traditional & limited public fora, private fora & trespass
      2. Online: Government websites, social-media accounts & private platforms.
    3. HOW TO SPEAK: Distinguishing protected speech from regulable conduct.
      1. Protected Speech: Pure speech & government criticism, symbolic speech (effigy & flag-burning), parodic, false, and anonymous speech.
      2. Unprotected Speech: True threats & incitement.
      3. Conduct: Violence, disruption, & impersonation.
    4. SPEAKERS’S RIGHTS: Limitations on government and private-actor censorship.
      1. Government Protests: Licensing and permit fees; prior restraints, hecklers, recording, government-employee protesters.
      2. Private-Actor Protests: Copyright, defamation, privacy, private-employee protesters.
    5. AUDIENCE & PRESS RIGHTS: Reporters and attendees have rights, too.
      1. Receiving Speech: Attending & recording protests.
      2. Publishing Speech: Reporting & disseminating physical and online protests.
    6. GOVERNMENT DUTIES: Government officials and contractors must accommodate protesters.
      1. Unlawful Content-Based Restrictions: Surveillance & protest-planning, anonymity, censorship, arrests, & seizure of equipment & records.
      2. Adequate Preparations: Training, planning, policies, & protecting protesters.
    7. CLAIMS ARISING FROM PROTECTED PROTESTS
      1. Against State Actors: Preemptive challenges, First Amendment retaliation claims, Fourth Amendment retaliation claims, & municipal-liability (Monell) claims.
      2. Against Private Actors: Defamation & anti-SLAPP litigation, copyright & fee-shifting, right-of-publicity & individual likenesses.