Freedom of Speech and Job Safety during Protests

The Bill of Rights, which is the first ten amendments to the Constitution, guarantees certain rights to citizens of the United States of America.  One of the most cited amendments is the First Amendment, which grants citizens the right to exercise freedom of speech and peaceful assembly.  As our society embarks on a new era in civil rights, these freedoms are increasingly relevant.  Many people feel passionate about their stance on certain topics, and want to exercise their rights by standing in solidarity for a cause.  Still, it is important for us all to understand the aspect of job safety during protests.

Before you take a stand, it is a good idea to do a little research to find out what rights you have as a protester.  Here is what you need to know about exercising your freedom of speech, while still maintaining job safety during protests.

Freedom of Speech

Some people are shy or soft-spoken by nature, while others are Eights.  In case you aren’t familiar with the Enneagram, it is essentially a diagram describing personality types.  We know Eights as being self-confident, strong, and assertive.  Also known as “The Challenger,” Eights are natural-born protesters.  So, these are the people who are going to look at a policy and feel compelled to try to change it for the better.  They exercise freedom of speech as much as they go to the gym.

Photo of protesters exercising freedom of speech with signs asking "HOW MANY WEREN'T FILMED?" among others.  Protesters who consider job safety during protests assemble peacefully.
Photo by Jamaal Haywood

Although Eights do tend to feel most confident where freedom of speech is concerned, they are not the only personality type to go out on a limb for a cause.  All personalities, when pushed to the extreme, have the capacity to speak up.  Furthermore, the United States of America was founded on the idea that everyone should have a voice, and that the government should not be a dictatorship.  Therefore, when the founding fathers were drafting the Bill of Rights, they made sure to include a few other provisions within the First Amendment, as well.  These provisions for specific freedoms include the following:

  • establishment and exercise of religion
  • expression
  • peaceable assembly
  • petitioning the Government

Even though these rights have been in effect for centuries, there is still much controversy surrounding them.  In fact, many grievances go to court when two parties disagree about how to interpret the laws.

Your Employee Rights and Job Security during Protests

So, that brings us to your job safety during protests.  It is extremely important in this moment to know that while you do have a right to peaceably assemble and express yourself, the full extent of the right is up for interpretation.  In fact, when the Bill of Rights was first enacted, the legislature interpreted the provisions more strictly.  Today, however, our freedoms are broader.

Still, you do not want to look a gift horse in the mouth.  Specifically, if something goes wrong, you will be at the mercy of a judge and jury to interpret the law.  In that case, your understanding of the law could mean little, and you would be left with no job security during protests.

As labor attorney Jonathan Bell explained in a CNBC article, “A lot of people say, ‘Well, what about the First Amendment? Doesn’t it protect our right to protest?’ The answer is yes. The First Amendment does protect an individual’s right to protest, but it doesn’t afford any protection for employment,” he says. “Freedom of speech does not mean that your employer can’t terminate you for any reason, especially if you’re an employee at will.”

While the First Amendment may not provide job safety during protests, a union membership might.  However, the union’s protection only goes so far, so you’ll want to find out if your union has “no strike” language written into a protest clause.  Also, know that using sick or PTO time to attend a protest could result in disciplinary action by your employer, if the absence wasn’t planned in advance. 

Know Your Rights

So, if you decide to proceed with protesting, the best thing you can do for yourself is avoid doing something that leads to prosecution.  If you break the law, you could find yourself without a job, and that would not be ideal.  Think of it this way:  how could you fully support the cause if you suddenly have to worry about your income? 

Thus, the first thing we want to do is identify your protester rights.  As previously mentioned, you do have the rights listed within the first amendment, but the law also permits law enforcement to restrict those rights as necessary.  If that sounds complicated, it’s because it is.  In fact, it can be quite sticky at times.  To help clarify, here are your rights as a list of dos and don’ts.

Do Get a Permit

If you are protesting in public streets, parks, or sidewalks, you may protest freely and take pictures of things in plain sight.  If you are protesting on private property, however, you must obtain a permit from the property owner to do so.  Furthermore, you must obtain a permit if your event will block traffic or close a street.  It’s noteworthy to mention that people can request a waiver if they can’t afford the fee associated with certain permits.

Don’t Abuse the Permit

Now, just because you have a permit to protest does not mean a free-for-all.  In fact, private property owners are allowed to determine what you can and can’t say.  So, be mindful of that when you are choosing your location to exercise your freedom of speech. 

Do Recognize Counter-Protesters’ Rights

So, of course your cause is important to you, otherwise you wouldn’t be protesting.  However, the Constitution specifies these inalienable rights to all citizens, not just the people on one side of the cause.  Therefore, while you might be tempted to knock out a counter-protester who gets in your face, don’t.  That person also has a right to assemble.  Furthermore, harming another person could void any job safety during protests that you might have.

Don’t Take Abuse

Unfortunately, it is not uncommon to see protesters’ rights violated.  Thus, do know that you don’t have to accept mistreatment by counter-protesters or law enforcement.  So, pay attention to your surroundings.  Be aware of who is around you, including law enforcement officers and protesters alike.  If you feel someone violated your freedom of speech or assembly, you will need to be able to identify the violator, have witnesses, and provide evidence.  Then, it will be up to you to file a complaint.

Do Leave if Police Order You Out

Image of a pen writing "Be smart" [know your rights and consider your job safety during protests] with a sketch of a light bulb next to it.

Now, this particular matter has been a tricky one lately, since the law enforcement and protesters are currently at odds.  In other words, it’s sometimes difficult to recognize authority when that authority feels like the enemy.  Nevertheless, the police may not shut down a protest without giving protesters a dispersal order. Furthermore, the shutdown must be the last resort, and due to imminent threat of violence or disorder.  Thus, the notice must include details such as the deadline for dispersing, a clear exit route, and consequences for failing to comply with the order.  So, if police are ordering you out by means of a dispersal order, know that they mean business and you must comply.

Freedom of Speech and COVID-19

One more thing to remember as we are considering protests is the lingering threat of spreading COVID-19.  So, while you may feel your job safety during protests is intact because you are not breaking the law, there is still more to consider.  For example, if you contract COVID-19 while exercising your freedom of speech, you could risk bringing the virus back to your place of employment.  Then, if enough people at your workplace become infected, your job safety could become a real issue.  In other words, if your employer doesn’t have enough healthy workers, it could be detrimental to business operations.  After you’ve worked so hard to guard your rights, it would be unfortunate to lose your job that way.

Stay Smart and Know Your Rights

Clearly, freedom of speech is one of the most sacred rights we have.  That right, coupled with the right to assemble peaceably, is what makes our country different from so many others.  Our rights are sacred to us, and exercising them allows us to feel invested in our country and in our beliefs.  Still, our rights have limitations, and we need to be mindful of that if we want to maintain job safety.

Therefore, the best thing you can do is arm yourself with information, so that you can fight for your cause, but in a just way.  What you are fighting for is worth it, but if you aren’t fighting in a just way, your important message could get lost in the chaos. If you do things the right way, your message will be heard loud and clear.

Photo of protesters exercising their rights peacefully and protecting job safety during protests by holding a sign that says, "BLACK LIVES MATTER."
Photo by Jamaal Haywood

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This is not meant to provide legal counsel or advice. Every situation is different. Please contact an HR professional or employment attorney before taking any action.

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