Spokane attorney: The right to protest is guaranteed, but with limitations

The right to protest was enshrined in the U.S. Constitution in 1791 with the adoption of the First Amendment of the Bill of Rights.

Not surprising, considering the nation got its start by protesting the acts of the British king and Parliament, and things escalated from there.

But the right to protest is not an unlimited one, court decisions over the last 200 years have made clear.

The amendment guarantees “the right to peaceably assemble.” The key word there is “peaceably,” legal experts say.

“Protest on public property is always allowed,” said Jeffry Finer, a Spokane attorney who has represented many protesters over the years, and has also worked on a landmark case involving the restriction of demonstrations at a local medical building.

But even on public property, protests are subject to reasonable restrictions on time, place and manner.

In an overview of court rulings on protest law, the Free Speech Center in Murfreesboro, Tennessee, says local governments can put limits on the number of protesters, ban early -morning or late -evening gatherings, limit the noise level or the size or placement of signs on government property. The rules have to be content-neutral, so a local government can’t allow a protest or issue a permit for one side of an issue but refuse it for the other side.

A local government can require a permit for a march on a street or a gathering in a park. It can limit the time or how long a protest takes place, imposing a curfew as Spokane Mayor Lisa Brown did Wednesday when demonstrators gathered after federal immigration officials detained two asylum seekers.

It can also say that a protest near a hospital, funeral home or cemetery is incompatible with that location and order it to move elsewhere, Finer said.

“If a speech activity starts engaging in conduct that turns violent or becomes an obstruction of traffic, law enforcement can step in,” Finer said. “If cops move you, you’re getting moved.”

People arrested at protests are usually not arrested for what they say or the views they express. It’s usually for breaking a local, state or federal law, such as failure to obey a lawful command, obstructing an officer or trespassing or violating a curfew. It’s an action some protesters decide they are willing to take beforehand, while others get caught up in the moment.

But even though Mahatma Gandhi and Martin Luther King Jr. went to jail for protesting injustice, Finer warns that’s not always a good strategy.

“The court is not a good place to advance a political agenda,” he said. “You’re not charged with a belief, you’re charged with an action.”

In past decades, a wide array of protesters has found themselves in Spokane courtrooms on various criminal charges. They’ve included anti-nuclear protesters trying to block trains carrying weapons to anti-abortion protesters trying to keep patients from medical offices to opponents of federal aid to the Nicaraguan Contras to anti-war protesters occupying an Army recruiting office during the Iraq War.

In each case, they tried to argue what’s known as a “necessity defense,” that the crime they committed was necessary to prevent a worse crime that was happening.

Judges in such cases routinely do not allow defendants to argue or juries to consider the necessity defense on the grounds that it has nothing to do with the charge they face. Some of the cases were dismissed on technical problems, such as issues identifying the people charged. In other cases, they were convicted on the charges and sentenced.

In one case, however, a Spokane County district judge was willing to allow a defendant to raise a necessity defense. After a hearing in which several expert witnesses testified, District Judge Debra Hayes ruled the Rev. George Taylor, an environmental activist who protested coal trains coming through Spokane in 2016, could offer a necessity defense to his charge of trespassing on the BNSF rail lines and delaying a train.

The Spokane County Prosecutor’s office appealed Hayes’ decision to the Superior Court, which reversed that ruling; Taylor appealed to the Court of Appeals, which agreed with the Superior Court. He appealed to the Washington Supreme Court, which ruled Taylor had a right to offer a necessity defense based on the testimony from environmental experts in the hearing. By then, however, it was 2021; the charges were dropped, so he never got to argue the necessity defense before a jury.

Finer said he does not advise clients to get arrested at protests as a way of highlighting their cause.

“Get arrested and you will siphon off resources from your cause” to pay for court costs, lawyers and fines, he said.