How to Be a Demonstrator And Stay Out of Jail

Even in the age of chronic protest, few Americans know the rules for public demonstrations. It is not surprising. The First Amendment firmly guarantees every person the right to speak freely, assemble peaceably and petition the Government for redress of grievances. Yet there is no constitutional right to express dissent at any particular time or place. State or municipal governments are free to restrict almost any public speech or conduct that clearly threatens to incite violence or impede some of society's other legitimate interests.

As a result, U.S. laws and customs dealing with demonstrations abound with local variations, many of which are probably unconstitutional but have not yet been tested in the courts. In South Carolina and several other states, anyone who hangs the flag upside down faces a jail term. Pennsylvania permits flag desecration as a form of political expression. In Athens, Ga., white demonstrators can get parade permits in six hours; blacks wait 24 hours. No appellate court has yet tested the constitutionality of the 1968 federal antiriot law, which carries a five-year sentence or $10,000 fine for crossing a state line to incite or join a demonstration that might turn violent, even if it never takes place.

All the same, the Supreme Court and many lower courts are gradually developing fair rules that apply equally to hardhats and longhairs. Among the more clearly settled patterns:

STREET-CORNER SPEECHES for political or religious purposes require no permits, even if a crowd is likely to gather. One rarely enforced New York City ordinance requires speakers to display an American flag. The general rule holds that strong, even abusive language is permitted, but incitement that might set off violence is not. The line between the two is still being worked out in the courts.

LEAFLET DISTRIBUTION is not littering as long as it is done on public streets for political purposes. Even so, recipients can be fined or arrested for discarding leaflets carelessly.

SIDEWALK MARCHES AND PICKETING are constitutionally protected from most interference by public officials, although several cities demand permits and Illinois law bars picketing in front of private residences. Marchers' legal protection probably applies to most privately owned thoroughfares that are used regularly by the public, such as the paths and parking lots of shopping centers. Peaceful participants can march as far as they like, stretch out the line of march, chant, and even subject pedestrians to minor inconveniences without being penalized. Pickets who remain standing instead of walking cannot be arrested for refusing to obey police orders to keep moving, unless the police have reason to believe that the demonstrators are blocking traffic or preventing pedestrians from normal movement.

STREET PARADES require permits virtually everywhere, as do activities in most parks and the use of sound equipment. Though permission may not be denied arbitrarily, standards of reasonableness are still in flux. Chicago reacted to the 1968 Democratic Convention riots by enacting a new law requiring the city to grant or deny permits within two days after applications are filed. The New York Civil Liberties Union wryly advises: "It may be well to apply for such a permit. If you don't get it, you will then have better defense if you are arrested."

ARREST. Once an individual is taken into custody, police may not interrogate him until they inform him of his rights to silence and legal counsel. But even if an arrest is illegal for any reason, the act of sitting down or going limp is often treated as the separate offense of resisting arrest. Third parties may be charged with interference for as little as standing in the way. Since an arrested witness is almost no use at all, lawyers suggest that observers who think police are unfair should keep quiet and note facts like the officer's badge number. Demonstrators may be searched--before arrest as well as after--if the police have good reason to suspect that they are carrying concealed weapons. Legal protests must remain peaceful, but in legally questionable situations the N.Y.C.L.U. pragmatically advises demonstrators: "If the police tell you to move, ask them where to and try to go there."

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