The Right to Protest is More Protected than You Think
It’s more than just the First Amendment
Based on everything we’ve seen in Minnesota for the last few weeks, it’s clear that we’re now living in a country where the federal government is targeting people because of their views, their speech, and for having observed federal officers. At the same time, we’re also a nation where people are consistently pushing back against that same government, through protests and other forms of resistance that are meant to be constitutionally protected.
It’s widely known that the First Amendment protects the right(s) to protest. But an array of other constitutional protections also safeguards our ability to register disagreement with the government without being punished, hurt, or killed. Importantly, none of our constitutional protections have a “protest” exception; they don’t disappear or fade away when people exercise their First Amendment rights, even when that might make the government unhappy.
Some of these constitutional provisions are backstops that come into play only if and when something has gone wrong, and government officials are already taking some (illegal) steps to sanction people for protest. Yet those fallbacks are still important — they prevent even further harm and even more illegal action. So as we navigate this moment in history, it’s worth looking beyond the First Amendment and asking:
What other protections does the Constitution offer?
The Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” If federal agents target protesters because of their speech — for example, by pretextually stopping or arresting protesters for other alleged crimes — the Fourth Amendment still limits the amount of force the officers can use against people who are being illegally targeted. And the Fourth Amendment is independent of any additional rules or restrictions that Congress might (wisely) choose to impose on ICE.
Specifically, the Fourth Amendment prohibits officers from using excessive force. Think of it this way: Officers can’t beat you if they want to stop and question you for jaywalking. The Supreme Court has further specified that it is “constitutionally unreasonable” for officers to use deadly force to prevent a criminal suspect from escaping when the suspect poses “no immediate threat to the officer and no threat to others.”
How might these legal rules play out? Consider that some people are attempting to retroactively justify Border Patrol shooting and killing Alex Pretti by pointing to a video of an encounter between Pretti and federal agents the week before Pretti was killed. In the video, and reportedly in response to federal agents trying to detain or arrest some individuals, Pretti kicks the headlights of a car and spits in the direction of the officers. Guess what? You can’t kill someone for that! You can’t beat them for it, either. That is excessive force in violation of the Fourth Amendment.
The Fourth Amendment also provides that “no Warrants shall issue[] but upon probable cause.” To arrest someone for a crime, officers generally need a warrant. (There are exceptions where a crime is committed in front of an officer or there are exigent circumstances.) To get a warrant, officers must convince a judge that someone has committed a crime.
Last week, a federal judge turned down the DOJ’s request for warrants to arrest journalists who filmed the protest related to ICE that occurred at a St. Paul Church. The DOJ argued that the journalists were actually participants in the protest, which they characterized as an illegal interruption of church services. The warrant requirement acted as a roadblock — albeit a temporary one, as federal officers subsequently arrested journalists Don Lemon and Georgia Fort after securing grand jury indictments. (A judge may still dismiss the indictments.)
The Fourth Amendment’s warrant requirement also means that federal agents can’t bust into protesters’ homes unless they convince a judge that there is probable cause to believe the protester committed a crime, and protesting itself does not constitute a crime. (Officers may also be able to enter homes without a warrant if certain exceptions to the warrant requirement apply. But the internal Department of Homeland Security memo that purports to authorize ICE officers breaking into homes without warrants is not limited to cases falling within those exceptions, which imagine federal officers going into homes to provide emergency aid, among other possibilities. That means the memo authorizes actions that likely violate the Fourth Amendment.)
The Fifth Amendment
The Fifth Amendment provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The upshot: The federal government can’t prosecute someone for a felony unless they convince a grand jury to indict that person. There have been numerous examples of grand juries rejecting various charges that the Trump administration has attempted to bring against people who were protesting or monitoring ICE.
In one case, the federal government tried — and failed — three separate times to indict a woman they accused of assaulting an F.B.I agent during a protest. The woman was filming agents who pushed her against a wall, and she then pushed them back. Other cases were dismissed when the allegations fell apart under scrutiny. In one case, a Border Patrol officer claimed he was obstructed by two men as he was chasing another suspect. But a social media video showed there was no chase, so the charges against the accused obstructers were dropped.
The Fifth Amendment also provides that “No person shall … be deprived of life, liberty, or property, without due process of law.” Its plain language contains a complementary principle to the Fourth Amendment — namely, that the federal government can’t kill you (or take away your liberty) without due process. Summary executions carried out on the street are extrajudicial killings, which, by definition, deprive people of life (and liberty) without due process of law.
The Fifth Amendment is another reason why the recent effort to retroactively justify ICE officers shooting and killing Alex Pretti based on Pretti’s earlier encounter with ICE officers is a nonstarter. If federal officers believed Pretti committed misconduct or violated the law, then they could have arrested him and tried to charge him. The Fifth Amendment prohibits ICE officers from acting as judge, jury, and executioner.
The Supreme Court has also interpreted the Fifth Amendment to contain anti-discrimination principles. In a lesser-known companion case to Brown v. Board of Education (the decision striking down separate-but-equal school segregation), the Supreme Court said that the federal government can’t discriminate on the basis of race or other protected characteristics such as sex. The anti-discrimination principles could become relevant in cases related to protest when there is reason to think that federal officers might be targeting people for a stop, an arrest, or a use of force based on the person’s apparent race or ethnicity or sex.
There has been a rabid vilification of white women who protest and monitor ICE officers — with some right-wing commentators referring to the existence of organized gangs of wine moms. The Fifth Amendment restricts officers from targeting protesters based on their sex or race — so if ICE officers are going after people because they are women, or because they appear to be a person of color, those arrests and prosecutions are also illegal.
The Sixth Amendment
The Sixth Amendment provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …. and to have the Assistance of Counsel for his defence.” If the federal government does charge a protester, the government has to get through a jury of the protester’s peers in order to get a conviction — as well as the lawyer that the protester is entitled to have to assist with their defense.
Again, we have seen examples of juries refusing to convict people who have been targeted by the federal government because they were protesting ICE. Remember sandwich man — the guy the federal government indicted because he threw a sandwich at a federal officer? (The mustard, the horror!) A jury refused to convict him. Juries have the power of what’s known as jury nullification, where, even if the jury might believe that a defendant has technically committed a crime, the jury nonetheless refuses to convict the defendant. A jury might do so if jurors suspect that the government is unfairly targeting a defendant or is using the threat of criminal liability to silence dissent.
The Second Amendment
One of many astonishing responses to the killing of Alex Pretti was the effort to justify, or at least minimize, federal officers killing Pretti based on the fact that Pretti had a gun on his person. (Multiple analyses have concluded Pretti was disarmed and never brandished the firearm or threatened the officers with it.)
The Supreme Court has repeatedly affirmed that individuals have a Second Amendment right to possess firearms on their person, subject to limitations that are not relevant here — the Second Amendment doesn’t have a “protest” exception. Pretti had a permit; he was lawfully carrying the gun. If the Second Amendment gives people the right to carry a gun, then the federal government doesn’t – and can’t – have the power to kill someone just because the government discovers the person is carrying a firearm.
The separation of powers
In addition to protections for individual rights, the Constitution contains a litany of what some people call structural provisions — rules about the distribution of power between the federal government and the states, or the distribution of power among the different branches of the federal government. These, too, provide protections for protest.
The Constitution assigns to the President a relatively limited number of powers; the President has other powers when Congress writes laws that expressly grant them. Guess what Congress doesn’t seem to have authorized the President to do? Deploy surges of untrained immigration officers for political retribution. So independent of the First Amendment, the President using ICE in this way violates the separation of powers as well.
There are also features of federalism that protect protesters. In an opinion by Justice Antonin Scalia, the Supreme Court said that the federal government cannot force state officers to enforce federal law. What does this mean? Even if the federal government wants to round up people who are engaged in protest, the Constitution does not allow the federal government to force state officers to participate in those enforcement measures. That protects protesters by limiting the law enforcement resources that are at the federal government’s disposal in its campaign against protesters.
None of this is meant to suggest that everything is okay or will be okay in Minnesota. The costs of being arrested or charged are extreme, even if you’re acquitted. So too are the harms of being pepper-sprayed, beaten, or harassed. But there are multiple, interlocking constitutional safeguards to prevent things from getting even worse.
Anyone who has been watching events unfold in Minnesota knows that the federal government is not abiding by the Constitution — much, if not all, of it. That doesn’t make the Constitution irrelevant, and it certainly doesn’t mean we should stop pointing out the myriad ways the federal government is violating the Constitution.
The people can enforce the Constitution too, by beating back unconstitutional action through public opinion, political consequences, or other nonviolent means. And some of the constitutional safeguards like the grand jury and the jury trial requirement don’t depend on the federal government. They depend on us.
The Constitution can also be — and historically has been — a rallying cry for movements and to unite people. To say that the Constitution forbids the government from brutalizing protesters is not to say that the government is filled with law abiders and rule followers who will follow the law. It is, instead, to highlight the depravity of what the federal government is doing in Minnesota so that we can unite around this message and end the federal government’s occupation and terrorization of an entire state.
 | A guest post by
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Thank you Leah for spelling this out so coherently. Having all these constitutional provisions consolidated in one place is genuinely useful.
But the part where we try to calm ourselves down by saying the Constitution is still relevant is going to ring hollow for a lot of us watching along. “The people can enforce the Constitution” through public opinion and political consequences sounds nice, but when we’re watching 96 court orders get ignored in a single month in a single state, abstract future consequences aren’t cutting it. What about the people being unconstitutionally brutalized and locked up today? They have to wait until November for some accountability, if voters remember them?
Maybe the problem is that the Constitution only tells us what the government *can’t* do, sometimes in vague terms, but never specifies what happens when the government does it anyway.
Sharon’s piece yesterday made me think about this differently. She wasn’t talking about constitutional amendments, but some of her proposed reforms feel targeted enough that they could work at that level. What if agencies had their funding stripped when they defied court orders? What if there was a mandatory compliance protocol with a documented chain of responsibility for every order — who receives it, who confirms it, who executes it, and what supervisor certifies completion? What if we required weekly public reporting on orders received and time to compliance?
The Constitution has always depended on people in power choosing to respect it. Maybe it’s time we stopped relying on that goodwill and built in automatic consequences instead.
I've seen numerous videos of ICE agents breaking car windows and dragging out drivers who are locked in, then forcing them to the pavement and arresting them. No warrants. What are the rights of people sitting in their cars, refusing/fearing to roll down their windows or open the doors to masked, armed men screaming at them to do so?