What Are My Legal Rights When Protesting — and What Could I Be Arrested For?

As protests continue in Los Angeles against increased immigration enforcement by President Donald Trump’s administration, rallies are spreading in response across the Bay Area — and now the country.

The Trump administration has been attempting to crack down on the demonstrations by deploying the National Guard — and promising to deploy Marines — to southern California. In San Francisco, police officials said they’d arrested over 150 people — including six children — during protests in the city’s downtown this past weekend.

The Bay Area has always been a hotbed of activism. In the past two years, pro-Palestinian protests have also had a strong presence in the region, with marches on streets, bridges and campuses.

“Lawful protests are, by design, meant to be visible and inconvenient,” ACLU Northern California’s legal director Shilpi Agarwal told KQED last year when District Attorney Brooke Jenkins announced possible felony charges against the protesters who shut down the Golden Gate Bridge in support of Palestinians.

“Lawful protests often create roadblocks or shut down streets or create traffic.”

But “as the arrests and violence increase, people become fearful of what might happen to them even if they protest peacefully,” Margaret Russell, assistant law professor at Santa Clara University School, told KQED by email in 2024 following  discussions with her students about campus demonstrations in protest at Israel’s siege on Gaza — and university leaders’ response to them. “Will they get caught up in an altercation and be arrested? Their determination to speak up is ‘chilled’ or silenced.”

So if you choose to join a protest — about any issue you feel strongly about — what are your legal rights in California? How much does the First Amendment protect protesters, and what can protesters be arrested for?

Keep reading for what to know about protesting and the law, or jump straight to:

• How much does the First Amendment protect me when protesting?
• What could I be arrested for at a protest?
• What happens if a police officer asks me to move or demands my I.D.?
• When does lawful protest become ‘civil disobedience’?

And remember: If you’re unable to join a rally or protest in person for whatever reason but want to make your stance on any issue known, you always have the option to contact your elected officials to express your opinions. For more information on what “call your reps” actually means, how to do it, and what to expect as a result, read our explainer: How Can I Call My Representative? A Step-by-Step Guide to the Process.

Remind me: What is the First Amendment?

The First Amendment of the United States Constitution protects five basic rights: freedom of religion, freedom of speech, freedom of the press, peaceful assembly and petitioning the government. (The text in full reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”)

California also has its own expansive free speech provisions under Article 1, Section 2 of the state’s constitution that protect and reaffirm many of these rights.

The First Amendment also gives you the right to film police who are actively performing their duties, and bystander videos can provide important counternarratives to official accounts. Read our guide to filming encounters with the police safely and ethically and where to share your footage.

“These rights are all really powerful, and they protect our democracy,” said Chessie Thacher, senior attorney with ACLU NorCal’s Democracy and Civic Engagement Program.

What doesn’t the First Amendment cover during a protest?

First Amendment rights are “not unlimited, and they depend on various factors,” stressed Thacher, including:

When you’re speaking

Even in public spaces, the government can impose what is known as “time, place and manner restrictions” that dictate certain parameters to try to ensure safety.

An example, Thacher said, is that the city can prevent people from using a loud bullhorn at 2 a.m. in a city square because people may be sleeping. But they can’t stop a person from using the same bullhorn at lunch hour the next day.

Where you’re speaking

You have a lot of protections in public spaces, like a park or a sidewalk. But if you are speaking at a private location — like someone’s backyard — “you don’t have many speech protections,” Thacher said.

The gray area: If you are speaking in a place that is “sort of public, like a school campus or a library,” then your rights to free speech “are somewhere in the middle,” she cautioned. “But even then, the government can’t punish you because they don’t like you.”

Who is speaking

If you are speaking as a private citizen on your personal time about something of public concern, your speech is protected.

However, Thacher noted, that speech is “a lot less protected” if, for example, you work for the government — since someone may think you are speaking for the government, and “the government has the right to decide its speech for itself,” she said. This can also happen when a teacher or a police officer is a speaker, and people may assume they are speaking on behalf of their workplace.

What are some things people misunderstand about the First Amendment and protesting?

Some misconceptions about the First Amendment, said Thacher, include:

It does not mean freedom from consequences

While the First Amendment prohibits the government from punishing you for your speech, “it doesn’t protect you from actions that a private employer might take because of your speech,” Thacher said. “It doesn’t protect you from receiving feedback from people about what you’re saying.”

It does not protect the “heckler’s veto”

Under the First Amendment, within some boundaries, you don’t have the right to shut down another person’s right to speak. For example, this could include yelling louder than another speaker so that other people cannot hear them.

It does not protect against true threats, incitement, fighting words or harassment.

The First Amendment also does not protect against “violent or unlawful conduct, even if the person engaging in it intends to express an idea.” 

When you’re protesting, where are your rights strongest?

The First Amendment, Thacher said, dates back to a time when locations like marketplaces were considered to be “the centerpiece of a community” — “so public spaces like town squares, sidewalks and other highly visible, publicly-owned property that are open to the public are where you have the most rights to free speech.”

The only thing people’s rights can be subjected to in public spaces is the reasonable “time, place and manner restrictions” mentioned above. Those restrictions also must be “content-neutral,” meaning it cannot be specific to your speech, Thacher said.

However, she added that it is a “totally different equation” if you are at someone’s house — since you are there at the invitation of the property owner, not the government.

Places where the public is invited at certain times, such as a public library or a public school cafeteria, are in-between spaces sometimes called a “limited public forum,” and “any restrictions of speech there must be viewpoint-neutral and reasonable in light of the forum’s purpose,” Thacher said.

Can I legally attend a protest if I’m not a U.S. citizen?

This is a question that’s only become more pressing against the backdrop of high profile activity by U.S. Immigration and Customs Enforcement (ICE) agents in recent months, spurred by President Trump’s promises to conduct mass deportations in his second term. June’s protests in Los Angeles came as ICE announced the arrest of over 100 immigrants in the city over the previous week. In the same period in San Francisco, at least 15 people were arrested following appearances at ICE check-ins, including a 3-year-old.

The technical answer is: yes, you can attend a protest as a non-citizen. “As a general rule, people who are not citizens have the same First Amendment rights as citizens,” said attorney Carl Takei, the community safety program director at the Asian Law Caucus: a civil rights organization based in San Francisco that offers services to low-income, immigrant, and underserved Asian Americans and Pacific Islander communities.

The First Amendment of the United States Constitution is meant to protect your five basic rights, and whether you have a green card or no permanent legal status you are still protected by the Constitution. This includes your right to be part of a peaceful assembly, like a march or rally.

However, judges have argued that many of the Trump administration’s plans and actions right now flatly go against the Constitution. And legal scholars and immigration advocates have warned that the president is testing his ability to challenge due process in the area of immigration particularly.

But what if you’re a non-citizen who’s determined to attend a protest right now?  Undocumented people and green card holders have always faced additional risks at a protest that citizens don’t, warned Takei — especially when law enforcement gets involved.

“A green card holder is required under federal law to carry evidence of their permanent resident status,” he explained. He adds that carrying a fake green card or identification and presenting that to law enforcement could make the situation a lot more difficult.

“If you’re stopped by the police, you have the same rights as anyone else,” Takei said. “You don’t need to consent to a search, answer questions or sign anything.” Even if the situation seems intimidating, Takei explains, you have the right to remain silent and not share personal information with law enforcement.

And if you’re asked a question about your immigration status and debating whether to share false information or remain silent, “it’s better to remain silent,” said Takei.

But ultimately, if you’re set on protesting as a non-citizen, the most important thing you can do to protect yourself is to make a safety plan for yourself before going to a protest, he recommended. “Write out the contact information for resources, including an attorney or legal organization, and make sure that you’ve talked with friends or family about what to do if you are arrested or if anything goes wrong,” he explained.

What does the law say about free speech on campuses?

Legal experts have interpreted the First Amendment to mean that public institutions are restricted from punishing speech. However, California also has Leonard’s Law that “prohibits private universities from making or enforcing a rule that subjects an enrolled student to disciplinary sanctions solely on the basis of speech protected by the First Amendment,” according to the University of Southern California’s website.

Dan Mogulof, assistant vice chancellor of public affairs at UC Berkeley told KQED Forum in 2024 that the University of California had changed its policy on responding to “non-violent political protests” after the 2012 Occupy Wall Street movement in which an officer pepper-sprayed a group of UC Davis protesters. (UC Davis settled a federal lawsuit with the students, paying around $1 million to the affected protesters.)

“That policy requires us not to call in law enforcement preemptively, and only when there’s a clear, imminent threat to the campus, to life, safety and to the safety of the campus community,” Mogulof said.

Is it legal to protest on the roads?

Bridges and highways are considered open public spaces — and public forums — but they are subject to safety and traffic issues.

“There can be civil disobedience. That could be a way of advocating for a cause, but it’s not protected First Amendment right to do that because the public and the government can have a compelling interest in making sure that those roadways and spaces are open and safe,” Thacher said.

However, she noted that in her opinion, “a lot of the times, the justification of public safety gets overused to punish protesters and speakers.”

What can I actually be arrested for at a protest?

“If you are looking to exercise your right to free speech lawfully and peacefully, you should not be arrested,” Thacher said. “But sometimes things happen.”

People at protests may be arrested under suspicion of any crime, but here are some of the most common reasons:

• Unlawful assembly
• Failure to disperse
• Disturbing the peace
• Resisting arrest
• Trespassing
• Vandalism
• Property destruction
• Disruption to traffic and safety of vehicles

ACLU Northern California’s Agarwal said that while charges for protests can be nuanced, at a basic level, if you are engaged in a protest and encounter police officers who then determine for “some reason” you have violated the “parameters” of the protest, there are usually three charging options available to officers:

• An infraction: typically a ticket where you show your ID, get a citation and may have to appear in court, with no jail time. Usually, an infraction is just a fine to pay.
• A misdemeanor: An offense that can be punishable by up to one year in jail, but people “rarely serve” jail time for low-level offenses, Agarwal said.
• A felony: A more serious criminal charge that usually brings jail time, which can be more than one year in prison.

If I’m arrested at a protest, what happens next?

What happens to a person after they’re arrested depends on the case, Thacher said.

A person could be given a citation to appear at a later court date or be given a ticket for an infraction. They may need to sign the ticket, saying there is no need to take them into custody because they promised to appear in court. But a person could also be taken into custody at the police department and booked into jail.

“If you are detained and the police say you’re not free to leave, you still don’t have to give a statement or submit or answer any questions,” said Rachel Lederman, an attorney with Partnership for Civil Justice Fund and with the Center for Protest Law and Litigation.

“If police are seeking to question you when you’re under arrest when you’re taken into the jail, you will have to answer some basic booking questions,” Lederman told KQED in 2023 after San Francisco police arrested over a hundred people — most of whom were minors — at an annual “hill bomb” event. “But you don’t have to answer questions about the incident that has led to your arrest.”

She said people may not want to give statements or interviews until they consult an attorney (also known as invoking your right to remain silent).

Can a police officer ask for my ID during a protest?

Yes, although in California, if you are not being arrested you do not need to show your ID or give your name to a police officer when asked for it.

That said, “sometimes it’s a judgment call about whether that might arouse suspicion,” Lederman said. Officers in California can’t also ask about your immigration status.

In California, “non-drivers cannot be lawfully arrested solely for refusing to provide identification to a police officer,” Thacher said. But nonetheless, she warned, “we do know of instances where police officers make the arrest anyway.”

In short: Be aware of the possible risks if you choose not to show identification to a police officer.

What should I do if a police officer asks me to move during a protest?

It depends, Thacher said. If this happens, she said that some things to bear in mind are:

• Why is the officer asking you to leave, and how are they asking you to leave?
• Do protesters have the ability to comply with the order, and can you do it reasonably without being put at risk of getting hurt?
• Are they asking you to move but you don’t have time to move because it is such a packed crowd?

“The officers have the right to ask you to move in certain circumstances, like for public safety … [or] if there’s traffic violations starting to happen,” she said. But “the police can’t ask you to leave and then immediately turn around and arrest you.”

The California Penal Code states that “[e]very person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse … is guilty of a misdemeanor” and that also anyone who “willfully resists, delays, or obstructs” an officer in the line of duty can be punished by a fine and/or imprisonment.

Something else to bear in mind: One particularly controversial police tactic during protests is “kettling,” in which law enforcement blocks off exit routes to confine protesters within a closed-off space. When kettled, you can’t leave on your own or comply with an order to disperse — unless police reopen an exit. Officers have been known to charge at or arrest protesters in these situations, including during Black Lives Matter demonstrations in 2020.

What should you do if you think a police officer violated your rights at a protest?

You should take notes and record details about encounters with police officers, advised Thacher —  especially if you think your rights may have been violated,  such as an officer calling people to disperse in a tightly packed crowd or kettle.

Some things to make note of include:

• The time and date
• The location
• The officer’s badge numbers and names
• Patrol car numbers
• How often it was said where you were directed to go.

“All of that stuff can be important when you’re trying to go back and understand what happened to you,” said Thacher.

If someone thinks their rights have been violated, they can take their notes and footage to a legal expert to understand the situation more. See our list of where to find free or low-cost legal aid in the Bay Area.

Russell, the Santa Clara University School assistant professor, said that if you are a student on a public or private college campus, file a grievance with the school’s relevant office and provide specific details of what happened. Russell said people should also contact their local ACLU’s advice line to provide details. If you can afford private legal counsel, groups like the National Lawyers Guild can specifically assist protesters.

“Think about what your goal is as a protester, and protect yourself accordingly,” said Russell, adding that reputable groups to learn about your rights include your local ACLU chapter, Amnesty International and the NAACP. “Educate yourself about civil disobedience and protest rights,” she urged.

When does lawful protest become ‘civil disobedience’?

Civil disobedience is “the refusal to comply with lawful orders as a form of protest,” Thacher said. For example, when an officer calls for dispersal and people do not move, that is when it goes from protected speech to an act of civil disobedience. It is also non-violent by its nature.

One of the most well-known examples of civil disobedience is the 1950s demonstrations by Martin Luther King Jr. during the civil rights movement, which frequently involved blocking roads and highways.

“People can choose to practice civil disobedience as a peaceful form of political protest,” Thacher said. “They can mix that with other activities that are protected by the First Amendment, such as lawful assemblies.”

Seth Morrison from the Bay Area chapter of Jewish Voice for Peace told KQED in 2023 that he would advise would-be protesters contemplating civil disobedience to “consider it carefully and think about the pros and cons.”

“But if you and a good group of people are deeply committed to an issue — if you’ve done your research and if you have tried through normal channels and not gotten a response — civil disobedience is something you should think about,” said Morrison.

Thacher said that while the First Amendment may not protect activities like blocking a bridge as the goal of the protest, this kind of action could be an effective act of civil disobedience nonetheless.

“A lot of times protests and civil disobedience can be put under the same umbrella of ‘civil unrest,’ and then everyone thinks it’s all the same thing,” she said.

“But protest and exercising your right to demonstrate and peacefully assemble is protected.”

A version of this story originally published on May 3, 2024. KQED’s Alexis Madrigal and Carly Severn contributed to this story.