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The Right to Protest and State Constitutions 

First Amendment analogues could offer distinct rights for protesters.



As I’m sure State Court Report readers are well aware, universities across the country have been roiled by campus protests over the war in Gaza. State constitutions are part of the legal framework that governs how these protesters can behave and how universities and the police can respond. But with the exception of California, where state law applies the free speech protections of the state and federal constitutions to students, most state courts haven’t yet done much to develop state doctrines related to the rights of protesters either on or off campus, other than to interpret state constitutional provisions in lockstep with the First Amendment.

What would a state constitutional law of protest look like? A look at states’ First Amendment analogues and some of the ways that state courts have drawn distinctions with federal law to date offers some clues about what we might see going forward.

To begin with, there’s a strong argument for thinking about state constitutional rights to speech and assembly independently from the First Amendment, because the provisions themselves are very different. In addition to limiting government restrictions on speech, most state constitutions, like New York’s, include some version of an affirmative right: that individuals “may freely speak, write and publish” their views on all subjects while being “responsible for the abuse of that right.” Citizens in nearly every state also enjoy some version of a “right to assemble in a peaceable manner.” Speech and assembly rights typically aren’t grouped together in a single provision but appear in different sections of the constitution.

Drawing on these textual differences, a handful of state courts have held that while the First Amendment generally only applies to government action, their state’s constitution also brings private actors under the ambit of its free speech protections. In New Jersey, for example, the state supreme court ruled that Princeton University couldn’t bar a non-student from distributing political materials on campus. The state constitution, the court explained, bars “unreasonably restrictive or oppressive conduct on the part of private entities” when they have opened their property to use by the public. California embraced a similar standard in ruling that a private shopping mall couldn’t throw out students seeking signatures for a petition opposing a United Nations resolution against Zionism, while making clear that the mall could establish time, place, and manner rules. Oregon likewise interpreted its state constitution to provide a right to collect signatures in a private shopping mall for a ballot petition.

These rulings are significant because they soften what’s a hard line in federal law: that government action is required in order to establish a First Amendment violation. While the state court rulings are clear that private institutions have property and other interests that justify greater limits on speech than those permitted to public institutions, state constitutions still place limits on nongovernment actors. This opens up the possibility that even private universities and other nonstate actors may need to consider state speech and assembly rights in how they write and enforce policies around protest.

State constitutions may also place a higher bar on time, place, and manner restrictions on speech and assembly than the federal Constitution, although to date most states have followed federal standards. Last year, for example, the Massachusetts Supreme Judicial Court struck down a town’s public comment policy, which required remarks in public meetings to be “respectful and courteous, free of rude, personal, or slanderous remarks.” Pointing to the state constitution’s Assembly Clause, which “reflects the lessons and the spirit of the American Revolution” and arose “out of fierce opposition to governmental authority,” the court held that “rude, personal, and disrespectful” remarks were protected as part of the state right to assembly.

Similar principles can have implications for police interactions as well. When a woman was charged with disorderly conduct after screaming profanities at a police officer who broke up a noisy party, the Indiana Supreme Court ruled that her speech and conduct were protected by the state constitution. Criticism of police is political speech, the court explained, and the charges therefore put a burden on “a core constitutional value” and couldn’t be enforced against her.

Finally, state constitutions may also have implications for employees’ protest rights. For example, while the U.S. Supreme Court has ruled that the First Amendment generally doesn’t apply to speech by public employees who are speaking as part of their official duties, the Connecticut Supreme Court has held that these employees still enjoy state constitutional protections. And under a statute that applies constitutional protections to private workplaces, private employees are also protected.

We don’t yet have a comprehensive set of state constitutional principles governing protest. Future development of the law is likely to be rooted in how individual states articulate their own constitutional values — although similar speech and assembly language across many state constitutions could also encourage state courts to look to each other’s analyses. And of course, assessments of individual protests are likely to be highly fact dependent. But what’s also clear is that as protests continue, we shouldn’t overlook state constitutions.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

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