By Miranda Spivack, author of Backroom Deals in our Backyards
Federal government agents’ routine malfeasance is occurring too often to count in states and communities across the country. As the Trump administration’s immigration and border control agents snatch people—often without due process—from streets, sidewalks, homes, schools, and workplaces, many people have become so outraged they are mounting public protests, often in disorganized and dangerous ways.
With the troubling decline in local news, whose reporters and editors formerly acted as the public’s eyes and ears, the need for residents to learn to address and document issues locally has grown exponentially. And they have a crucial modern tool that fits in their pocket: the smart phone, with its camera and recording functions. That means almost anyone can operate as the public’s eyes and ears and can rely on their First Amendment rights to do so. Unfortunately, many of the eager people flooding the streets and sidewalks are unaware of the legal and effective ways they can exercise those rights.
That lack of knowledge about First Amendment rights was the case for many of the newly minted, accidental activists I met as I reported across the country about the growing scourge of government secrecy and the frequent collaboration with various industries. But they eventually learned the most effective ways they could fight government and corporate obstruction and misbehavior. Most of their battles took place at the state and local levels as they sought to overcome information blockades and get the facts about a local problem, and then let their communities know what was going on behind closed doors. They focused their efforts on various ways to make state and local governments more responsive to the people. But many of the techniques used by these local heroes can easily be used by both veteran and aspiring activists who are in the streets and on the sidewalks in their communities right now, facing a fraught and dangerous political environment.
The accidental activists I met learned by doing as they fought to expose environmental injustice, flaws in the criminal justice system, toxins in protective gear, and the unwillingness of the government to be transparent about dangerous roads. But for many people who are pushing back against federal overreach right now, time is of the essence.
With that in mind, here’s a quick primer based on the lessons and techniques the accidental activists learned, which can be applied to efforts to expose federal wrongdoing. They obtained public records, documents and data; organized their community through different forms of social media and in-person conversations; looked for experts and residents of other communities who encountered similar issues; showed up in public places and at government meetings; got the word out about their findings; and communicated via social media community listservs, text groups, and what local media outlets continue to exist. They were, often without realizing it, invoking their First Amendment rights to peaceably assemble, petition the government, express their views, and convey crucial information in non-defamatory ways. Here are some tips I gleaned from their efforts.
When you are protesting or petitioning the government, stand or sit in public areas only.
What is a public area, where your speech, right to assemble and right to petition the government are protected by the First Amendment? The sidewalk, a government-owned park, or the plaza in front of a government building are often the best places to stand to invoke your First Amendment rights. While you can attend and observe government meetings, you can generally speak only when called on. The key is to avoid any situation where you can be accused of “impeding” government agents, which can be grounds for them to interfere with you. What’s not a public place? A shopping mall’s interior, and even sometimes its parking lot, are also rarely considered public places. Instead, they are often listed in property records as privately owned. So avoid them for any assembly where people want to make their views known.
If you are in a well-defined outdoor public place, you can hold signs, shout slogans, and move back and forth or in a circle, as long as you aren’t so loud that you could be accused of disturbing the peace (which is usually an issue enforced by local police; but it’s not worth testing the feds on that). You can take videos and photos.
If you do record, immediately send those videos and photos to a trusted friend who is not on the scene with you, so that your items are preserved in case someone snatches you and your phone. Make sure your phone is protected with a password, not facial recognition. Consider deleting videos and photos after you send them. Law enforcement officials usually need a judicial warrant to take and search your phone, so be sure to ask for one before giving up your phone, camera, or any other material. This of course, assumes a calm confrontation, which may be a pipe dream. But it is worth trying to press law enforcement agents to produce a warrant signed by a judge.
Go with a friend and make friends.
Always go with a friend who knows your emergency contact info. Put it in your phones but also jot it down on a piece of paper that you secrete somewhere (like in your shoes!). Make friends with others who are appearing with you at the same scene and share contact information so that you can all communicate if you need to assist them or need assistance yourself. Enlist someone not on the scene on speed dial in case you run into problems. That person should have groups such as the local office of the American Civil Liberties Union on speed dial.
Consider using Signal to try to enable secure communication.
Pay attention to the behavior of your fellow protesters and move to discourage behavior of anyone who may be unaware of their limitations of First Amendment rights and might inadvertently step over a line.
If at all possible, figure out who may be a leader of the group, and talk with them about how to communicate to the group how to protest effectively and discourage missteps. In a somewhat odd confluence of events, Supreme Court rulings and congressional gridlock have given state and local governments more legal power to conduct oversight of industry, education, environment, health care, policing, and workplace safety. This means there is less opportunity for the federal government to supersede those laws, rules, and regulations. Given the tensions between state and federal officials at the moment over immigration and border agents’ behavior, there is opportunity for residents to enlist help from the state and local governments to deter federal action on immigration and against protesters. Learning how to put pressure on state and local governments to encourage them to take strong steps, in this case to deflect the federal government’s actions, is doable, and is a key takeaway from the people and communities I profiled as they worked to expose problems.
Seek information about the links between state/local governments and the federal government.
The conflicts on the streets also offer opportunities for residents to seek information from their state and local governments about their communications and other connections with the federal government that may shed further light on the federal government’s plans. This information, if it is made available in a timely fashion (timing varies from state to state), can be useful to circulate to journalists, community listservs, and local bloggers.
These tips are not legal advice. But they offer some guidance that can be relied on by citizens and non-citizens who are seeking to safely exercise their rights to peaceably assemble, document events in public places, and express their opinions without illegal and unconstitutional interference from the federal government. The Bill of Rights to the Constitution, the home of the First Amendment, does not refer to citizens, but only to persons and the people. As of this writing, the First Amendment’s guarantees belong to any person on U.S. soil, citizen and non-citizen alike.
