Aside from the time, place, and manner restriction, “when you have a public forum, there is very, very little that the government can do to regulate your speech,” she said.
Conversely, First Amendment rights are at their lowest at places like private homes, Agarwal said.
“It doesn’t mean that you have no rights, but it does mean that whenever and wherever you are on something that is not a public forum, the strength of your First Amendment rights starts to wane,” she said. “And the government can do more to regulate what you can and cannot say.”
Read more about your First Amendment rights at a protest.
Attending a protest when you’re not a U.S. citizen
One question that KQED has gotten over the years is: “I’m not a U.S. citizen. Can I even be part of a protest?”
It’s a question that’s only become more pressing against the backdrop of high profile activity by U.S. Immigration and Customs Enforcement (ICE) agents in recent months, spurred by President Trump’s promises to conduct mass deportations in his second term. June’s protests in Los Angeles came as ICE announced the arrest of over 100 immigrants in the city over the previous week. In the same period in San Francisco, at least 15 people were arrested following appearances at ICE check-ins, including a 3-year-old.
The technical answer is: yes, you can attend a protest as a non-citizen. “As a general rule, people who are not citizens have the same First Amendment rights as citizens,” said attorney Carl Takei, the community safety program director at the Asian Law Caucus: a civil rights organization based in San Francisco that offers services to low-income, immigrant, and underserved Asian Americans and Pacific Islander communities.
The First Amendment of the United States Constitution is meant to protect five basic rights: freedom of religion, freedom of speech, freedom of the press, peaceful assembly and petitioning the government. Whether you have a green card or no permanent legal status, you are still protected by the Constitution, and that includes your right to be part of a peaceful assembly, like a march or rally.
However, judges have argued that many of the Trump administrations plans and actions right now flatly go against the Constitution. And legal scholars and immigration advocates have warned that the president is testing his ability to challenge due process in the area of immigration particularly.
Bear in mind also that there are limitations to First Amendment protections. For example, they do not protect speech that can be considered true threats, incitement, fighting words or harassment. The First Amendment also does not protect against “violent or unlawful conduct, even if the person engaging in it intends to express an idea.” KQED has a complete guide on how First Amendment protections apply in protests.
But what if you’re a non-citizen who’s determined to attend a protest right now? Undocumented people and green card holders have always faced additional risks at a protest that citizens don’t, warned Takei — especially when law enforcement gets involved.
“A green card holder is required under federal law to carry evidence of their permanent resident status,” he explained. He adds that carrying a fake green card or identification and presenting that to law enforcement could make the situation a lot more difficult.
“If you’re stopped by the police, you have the same rights as anyone else,” Takei said. “You don’t need to consent to a search, answer questions or sign anything.” Even if the situation seems intimidating, Takei explains, you have the right to remain silent and not share personal information with law enforcement.
And if you’re asked a question about your immigration status and debating whether to share false information or remain silent, “it’s better to remain silent,” said Takei.
But ultimately, if you’re set on protesting as a non-citizen, the most important thing you can do to protect yourself is to make a safety plan for yourself before going to a protest, he recommended. “Write out the contact information for resources, including an attorney or legal organization, and make sure that you’ve talked with friends or family about what to do if you are arrested or if anything goes wrong,” he explained.
Remember there are many ways to protest
As the disability community continues to remind others, there are many ways to show up.
You can participate in many meaningful ways that don’t include attending an in-person protest or rally. This could include educating yourself, voting, talking to your community and supporting grassroots organizations, as outlined in this 2020 guide from KQED’s Nastia Voynovskaya.
You can also contact your elected officials to express your opinions. For more information on what “call your reps” actually means, read our explainer, How Can I Call My Representative? A Step-by-Step Guide to the Process.
COVID is still with us: What to know about your possible risks attending a protest
The good news: Your risks of getting COVID-19 outdoors remain far lower than your risks indoors — about 20 times less, said Dr. Peter Chin-Hong, professor of medicine and infectious disease specialist at UCSF.
Also, being vaccinated and boosted will greatly reduce your risks of getting very sick, being hospitalized or dying from COVID-19.
But you should still think about your risks of getting (or spreading) COVID-19 at a big event full of people, even when you’re outdoors. As with so many decisions against the backdrop of COVID-19, a lot comes down to your personal risks and circumstances — not just to protect yourself but others, too. “I think it requires people to be thoughtful about who they are, who they live with, and what happens when they leave the protest and go back home,” Chin-Hong said.
