The right to protest is your First Amendment freedom to gather, march, and speak in public spaces to make your voice heard. It protects peaceful assembly, signs, chanting, leafleting, and your right to record police while they work. The government can set neutral rules on the time, place, and manner of a gathering, but it cannot silence you because of what you are saying.
Your right to protest is strong, but it is not unlimited. The First Amendment protects peaceful assembly and speech in public. It does not protect blocking a building, destroying property, or physically interfering with police.
Key facts
- Nine federal circuit courts protect your right to record police in public. The Second Circuit joined them in August 2026 (ACLU of Connecticut).
- States have enacted 60 anti-protest laws since 2017. Legislators in 45 states have filed 385 such bills (ICNL).
- Federal agents arrested more than 300 anti-ICE protesters in 2025. Prosecutors dropped or lost over a third of the cases (ProPublica and FRONTLINE).
- DHS calls filming agents obstruction of justice. A federal judge ruled that policy unlawful in January 2026 (Houston Public Media).
- Police can order a crowd to disperse only for actual or imminent violence, and the order must be audible with time to comply (ACLU).
Before you head to a protest, save a legal-support number in your phone. The National Lawyers Guild Mass Defense Hotline connects arrested protesters to lawyers, and the ACLU know-your-rights guide for protesters lays out your rights in plain language.
What the First Amendment Protects
The line runs between what you say and what you do. Speech and peaceful assembly are protected. Actions that block, damage, or threaten are not.
Protected vs. Not Protected
| Protected | Not protected |
|---|---|
| Peaceful assembly, marches, demonstrations | Blocking access to buildings (civil disobedience) |
| Signs, chanting, drumming, dancing | Incitement to imminent violence (Brandenburg v. Ohio) |
| Leafleting and pamphleting | True threats or fighting words |
| Symbolic speech: T-shirts, puppets, art | Trespassing on private property |
| Picketing (no permit required if orderly) | Destruction of property |
The government can impose time, place, and manner limits that are content-neutral and narrowly drawn, like requiring a permit for a large rally in a public park. It cannot restrict you based on the content of your message. Supporting an unpopular cause is never grounds to shut a protest down.
The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.
Supreme Court, De Jonge v. Oregon, 1937
When Police Can Order a Crowd to Disperse
Police can order a dispersal only when a group has become violent or poses a clear danger of imminent violence. Loud protest is not grounds. Individual crimes by a few protesters do not make the whole assembly unlawful.
A dispersal order must be audible to the entire crowd, and you must be given a reasonable time and a clear path to leave. If you believe an order is unlawful, you still have to comply in the moment and challenge it later, not on the street.
Your Right to Record Police and ICE
You have a First Amendment right to record police and federal agents doing their jobs in public. Nine federal circuit courts have recognized it: the 1st, 2nd, 3rd, 4th, 5th, 7th, 9th, 10th, and 11th. The Second Circuit joined them on August 17, 2026, in Massimino v. Benoit.
The 4th Circuit ruled in 2023 that livestreaming a police traffic stop is protected. The 1st Circuit upheld the right to secretly audio-record police. The Supreme Court has not ruled directly, but it has declined to take cases that would overturn these decisions.
DHS Says Recording Is a Crime
DHS disputes all of it. A DHS spokesperson said in December 2025 that recording law enforcement “sure sounds like obstruction of justice”. Secretary Kristi Noem said in July 2025 that videotaping agents counts as violence against them. A December 2025 Justice Department memo went further, telling prosecutors that filming immigration raids can be charged as domestic terrorism.
Agents have acted on it. ICE officers told a community observer in Portland they were putting her on a “domestic terrorist watch list” for recording them. A federal judge ruled the DHS policy unlawful in January 2026. You have the right to record. They do not have the right to threaten you for it.
What the courts say
- 9 federal circuits: recording police is protected speech
- 4th Circuit: livestreaming a police stop is protected
- 1st Circuit: secret audio recording is protected
- Federal judge: DHS recording policy is unlawful
What DHS is doing
- Calling recording "obstruction of justice"
- DOJ memo: filming raids is "domestic terrorism"
- Putting observers on "domestic terrorist" watch lists
- Scanning observers with facial recognition
If You Are Arrested at a Protest
Do not resist physically. State your name if an officer asks. Beyond that, you have the right to remain silent and the right to a lawyer. Say you want an attorney, then stop talking.
Do not consent to a phone search. Police need a warrant to search your phone (Riley v. California, 2014). Say the words: “I do not consent to a search of my phone.”
Document everything. Write down badge numbers, the time of arrest, what was said, and who witnessed it, as soon as you safely can. Call the National Lawyers Guild Mass Defense Hotline or your local ACLU.
- 33%+
- of 300+ anti-ICE protest arrests ended in dropped or lost cases
- 1,500+
- Jan. 6 rioters pardoned in 2025
- 93%
- of 2020 racial-justice protests had no violence
- 60
- anti-protest laws enacted since 2017
ProPublica and FRONTLINE examined more than 300 anti-ICE protest arrests in 2025. Over a third fell apart, with charges dropped, cases never filed, or losses at trial. Border Patrol chief Gregory Bovino told his agents on camera: “Arrest as many people that touch you as you want to. Those are the general orders, all the way to the top.”
60 Anti-Protest Laws Enacted Since 2017
States have turned protest into a legal risk. The US Protest Law Tracker counts 60 anti-protest laws enacted since 2017, out of 385 bills filed in 45 states. Only Hawaii, New Mexico, Maine, Vermont, and Delaware have seen no such bills.
Tennessee has enacted more anti-protest laws than any other state, seven since 2017.
| Category | Value |
|---|---|
| Tennessee | 7 |
| Oklahoma | 6 |
| Louisiana | 5 |
| North Dakota | 5 |
| South Dakota | 4 |
| Florida | 3 |
| Texas | 3 |
| Georgia | 3 |
Source: ICNL US Protest Law Tracker. 16 states passed laws specifically targeting environmental protesters.
The laws create new “unlawful assembly” crimes, add felony penalties for blocking traffic, strip public benefits from convicted protesters, and grant immunity to drivers who hit protesters with cars. North Dakota added a penalty in 2026 for wearing a mask to conceal your identity in a crowd. Sixteen states wrote laws aimed at environmental protesters in particular.
Protect Your Phone at a Protest
Your phone is the easiest thing to seize and the hardest thing to lock down after the fact. Set it up before you go.
Digital Security Checklist
| Before the protest | During | After |
|---|---|---|
| Back up your phone | Use Signal for messages | Delete photos that identify other protesters |
| Set a strong passcode (not face or fingerprint) | Turn off location services | Change passwords if your phone was seized |
| Write a lawyer's number on your arm | Use airplane mode when not recording | Check for new apps or profiles on your device |
| Turn on disappearing messages | Do not unlock your phone for police | Report surveillance to the ACLU or NLG |
A passcode is safer than Face ID or a fingerprint, because police can more easily compel your face or thumb than the code in your head. Government surveillance at protests now includes facial recognition, license plate readers, and subpoenas for location data. ICE has used the Mobile Fortify facial recognition app on community observers, and class-action suits in Maine and Minnesota accuse DHS of scanning observers’ faces and logging them as domestic terrorists.
Common Misunderstandings About Protest Rights
Knowing the limits protects you as much as knowing the rights. Four points trip people up most.
The right to record does not stop an arrest. A court may later rule that an officer violated your First Amendment rights and still grant that officer qualified immunity, which shields them from paying damages. The Second Circuit did exactly that in Massimino v. Benoit, and the Fourth Circuit did it in the livestreaming case. The right is real, but enforcing it often happens after the fact.
Recording is protected, interfering is not. Filming from the sidewalk is your right. Crossing a police line, entering a scene, or physically getting in an officer’s way can be charged as obstruction, and that charge does not depend on your camera.
The First Amendment restrains the government, not private owners. A mall, a business, or a private campus can ask you to leave. The strongest protest protections apply on public sidewalks, streets, and parks, the traditional public forum.
An arrest is punishing even when the charge collapses. More than a third of the 2025 anti-ICE arrests ended without a conviction, but an arrest can still mean hours in custody, a seized phone, and a record. That is why documentation and a legal-support number matter before you go.
Frequently asked questions
Do I have to give police my name at a protest? It depends on your state. In “stop and identify” states, you generally must give your name if an officer has lawfully detained you. You never have to answer other questions, and you can say you want a lawyer.
Is it legal to wear a mask at a protest? Usually yes, but some states restrict it. North Dakota added a criminal penalty in 2026 for masking to conceal your identity while gathered in public, and a few older state laws also target masks. Check your state before you rely on one.
Can I record ICE agents, not just local police? Yes. The First Amendment right to record covers federal agents working in public, the same as local police. DHS disputes this and has threatened observers, and lawsuits over that policy are moving through the courts, but the courts that have ruled side with the right to record.
What happens to my case if the charges are later dropped? You may still spend hours or a night in custody, lose access to a seized phone, and carry a record of the arrest itself. Dropped charges are the goal, not a guarantee that the experience costs you nothing, which is why legal support matters from the first hour.
What You Can Do
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Know your rights before you go. Print the ACLU know-your-rights card for protesters. Save the National Lawyers Guild Mass Defense Hotline in your phone and write a lawyer’s number on your arm.
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Train as a legal observer. The National Lawyers Guild Legal Observer program teaches volunteers to monitor and document police conduct at protests. It is open to anyone, not just lawyers.
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Push Congress to protect the right to film agents. Ask your House member to co-sponsor Rep. Maxwell Frost’s bill to codify the First Amendment right to record federal agents and let people sue when that right is violated.
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Fight anti-protest bills in your state. The ICNL US Protest Law Tracker shows which bills are pending where you live. Call your state legislators before a vote, not after.
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Record what you see. Nine circuits protect it and a federal judge has backed it. Documentation is what turned 300 shaky arrests into dropped cases. Use the right.