[00:03:01] Host: When we look at the First Amendment, we're in a challenging time for a lot of reasons. But for the First Amendment and for the freedom of speech, this current administration is attempting to make protests illegal, which is not the first time that that's happened, but it feels a lot stronger currently. And this is peaceful protest, not just civil disobedience. So looking at that, what does the First Amendment protect? How secure is this First Amendment right?

[00:03:43] Thacher: That is a great question. I think I will start with what seems to me particularly ironic, which is that when President Trump came into office, one of the first executive orders that he signed was an order aimed at ending government censorship. And right now we are in a time of unprecedented government censorship. So you asked, what does the First Amendment protect? It is a restraining measure on government. It prohibits the government from interfering with or punishing a citizen or an individual in this country from exercising sort of five essential freedoms. These freedoms were described, and I think very perfectly, by a NYU professor, former ACLU attorney Bert Newborn. He talks about how the five freedoms protected by the First Amendment are a blueprint for democracy. It begins with having this idea or belief in your head that could be the freedom of religion, the desire to express those ideas and give them a voice. That's the freedom of speech. You want to share those ideas and have others share them as well across many mediums. Print the digital universe. That's the freedom of the press. You want to gather these ideas and show support for them. That's the freedom of assembly. And then importantly, the freedom to demand that the government be responsive to your ideas, to seek changes. And that's the freedom to petition your government. Now, all of that is encompassed by the First Amendment.

We're talking today, it seems like, most about our right to protest, which is a bit about free speech, freedom to assemble, freedom to petition the government, what the press can do in observing your protest movements or organizing. And so those are the five essential freedoms. And the government should not be interfering with the exercise, the peaceful exercise of those rights. We are in a world right now where what the government should not be doing is up in the air. They're crossing red lines that haven't been crossed before. And so it's a little bit difficult to talk about some of our rights because the government is assailing what has been held as longstanding bedrock principles to exercising your First Amendment freedoms. The idea that this administration could undercut protests so badly by passing restrictive laws, it's an anathema to our sort of DNA as a country. Like we were founded on protests. The Boston Tea Party was a protest. It was our move to become a separate nation. The end of slavery was brought about because of abolitionists, very brave abolitionists protest movements. The end of segregation in the South and elsewhere was brought about because of a very coordinated and dedicated number of people who protested in the civil rights movement, which also ended or helped to end the draft of young men in this country. These things would not have happened without protest. And that is why I say that protest is baked into the DNA of our country.

[00:07:11] Host: Is there a way that this administration or any administration could make that illegal?

[00:07:20] Thacher: I don't think you could ever outlaw. I don't think a court would ever allow an administration to ban protests because what does it mean? Protests could be a sign in your window or a bumper sticker on your car. What could happen is that increasingly strict rules get imposed on the gathering of people, curfews, for example, or how and what manner you can protest. It's not that you would have an outright ban on protest. It's that you would begin to undercut some of the ways in which people gather. I would be I don't think that the Trump administration is saying it wants to outlaw protests. It just wants people to protest, quote, the right way. And I think I take that to mean in a way that I agree with what you're saying. And that's what the First Amendment cannot tolerate. It cannot tolerate the government saying this viewpoint is OK, but that viewpoint is not. And I'm going to punish you for that viewpoint. We cannot have that.

[00:08:21] Host: We have a history. I think it's definitely here in the United States. And I think it is kind of a global experience now of students and young people in general being at the forefront of change, whether it's through protests, sit-ins, civil disobedience. And I'm looking at like the civil rights movement, anti-war, anti-gun, climate protests. Now, why do you think young people are so much more radical than their elders? Is it the imagined invincibility of youth, the having nothing to lose, no obligations, no children or career? Or is there a greater sense of the importance of their future at that point?

[00:09:12] Thacher: I think it's all of those things. And I just I love this question because it presumes that our youth and our students will be engaged citizens of the world. And that should be what we most want. It is good for students and young people to care about the world we live in and the community we live in and the neighbors that surround them. It is good for them to confront ideas that they may not agree with and stand up to those ideas and advocate for some change. I feel like anecdotally, much of history sort of looks back at student movements 20 years later and says, oh, obviously, I think that in our 20 year time frame, you could look at the end of apartheid in South Africa. And that was a very active cause on a lot of campuses. People, I think, sort of shrug and like, how could we not have been anti-apartheid today? And so it is important to think that in the moment students may look radical, but over time, much of history has sort of given the stamp of approval to the positions that they were advocating. And maybe that's because students and young people have a more clear version of the world and what they have to lose might be sort of less obvious to them right then. But I just I hope we can encourage the youth and students to organize and be active about what they believe in, because if we don't encourage that, then our civic society will really suffer.

[00:10:50] Host: You know, and I should say I have a caveat to that as well. My mother grew up more conservative, religiously conservative in the 60s, and so wasn't a part of a lot of these movements that happened. But now in her 70s is an active participant in social justice organizations. For the first time in her life, she's making signs. She's attending marches. So that may be something along the lines of what you're talking about, of realizing like, oh, yeah, this is what we should stand up for.

[00:11:29] Thacher: Yeah, I think that there is probably something on either end of the spectrum where older folks are starting to see, like, what kind of a world do I want to leave behind for the people that I care about, for my grandchildren? And so I feel like many people are talking about the role of democracy, the role of free and fair elections, the role of government in a climate change debate. That is the role of what is happening with our budgetary crises and our role in wars overseas. I think older generations have the perspective now to use their and sometimes the time to use their voice to sort of pass on what we hope will be a better world for those that come after us.

[00:12:18] Host: I want to look at the universities in particular. We're about to enter into this new school year, and our government and the world itself is giving multiple opportunities and multiple issues to stand up against. So what ways can students organize and protest on campus safely without reprisal or retribution from the school, from the police, and from the government? And we could start with the school, since one of the ways he's coming after them is with a threat of cutting federal funds. And that could be really persuasive when universities and schools are struggling to find funding. That's the lifeblood of universities, and it's hard to stand up against that.

[00:13:13] Thacher: That's a really big question, and it's a hard one to answer succinctly. I think that the targeting of our universities and the withholding or the threat of withholding money, unless universities like Harvard go into a certain academic review by the executive branch and agree to certain rules, it's outrageous. This is a potential threat to us all. Forget if you care about student rights and speech rights at schools. It's impacting our cancer research monies and our ability to develop remedies for dementia and other important health issues that universities help to advance in their research labs. There are lots of collateral impacts of this move by the administration on universities across the country. I think that the best way to deal with that kind of autocratic, repressive move to get universities to kowtow, essentially, to the administration is for all universities to come together and say, we're not going to do that. Like, that's beyond the pale. If you bend the knee–to have all these metaphors– to the administration and say, “I apologize and I'll do everything you say,” then you're kind of enabling this administration to take such aggressive and, I think, unprecedented legal efforts to sort of shape the speech of schools, which should be places where lots of perspectives get expressed, where people feel safe to learn. That's important. And they feel supported in questioning orthodoxies.

In terms of what universities should be thinking about, I think universities have a hard job right now. They need to take oftentimes 18-year-olds and grow them into people who have an earning potential in the future. They have to educate them sometimes in ways of the world that those students weren't able to sort of learn about as children in their communities. And that coming together can be full of conflict sometimes between administrative officials and students. And there's a lot of growing and universities have to create environments that protect free speech, but also don't involve a pervasive discrimination against certain ideas. And that's not always an easy mix to get right.

[00:15:54] Host: Well, a lot of the attacks, looking at Harvard and Columbia specifically, on those universities and those administrations came in reaction to the protests in support of Palestine. So as we're looking at the future, as we're looking at, you know, whatever is happening with Iran and Israel, as we're looking at what's happening with deportation, as students want to rise up and say, they want to rise up and have their voices heard. What is a way that they can do that on campus and make sure that they aren't targeted or threatened by suspension or arrested?

[00:16:38] Thacher: Yes. Great questions. In order to help prepare students, and this also applies to others who aren't enrolled in schools or students, this is basic First Amendment 101, you need to know how, where you have speech rights and what those are, and then we can talk about how to stay safe from crossing the line, unless you decide you want to cross over to a line, and that would be in civil disobedience. So taking that from the top, I mentioned that you have really broad First Amendment freedoms, but they're not unlimited. How your First Amendment rights show up for you to protect your speech can often depend on sort of where you're standing, where you're speaking.

The Supreme Court has analyzed and created this rubric of forum analysis, and that sounds kind of unapproachable language, but let me try to break it down and make it understandable. What the court says is that if you are standing in what's called a traditional public forum, then you have a lot of free speech rights. That's government-owned property that is typically open where you can go freely without asking anyone for permission to be there. There, we are endowed with the most free speech rights we can have, and the government or school must have extremely good reasons to restrict your speech in those spaces. On the other side of the spectrum, if you're trying to speak in an area like a dean's office or a mayor's office, a place where you would have to have an appointment to go into or wouldn't typically members of the public be allowed in at all, then that's called a closed public forum and you don't have a lot of speech rights there. In the traditional public forum spaces, the campus quads, the markets, the space, the sidewalks outside of government buildings, the government is allowed to impose what are called reasonable time, place, manner restrictions.

What's reasonable? What does that mean? It can depend. The worst thing lawyers do is not answer a question with a yes or a no. They say it depends. Time, place, manner restrictions are so that they're all geared around this effort, this desire for the government to make sure that open spaces are open to all and not monopolized by one group. In a sense, they are about making sure that everyone has some access to a public space, a quad, a forum like a market square. When you have a time restriction, it means that the government, if it has good reason to, can maybe restrict your ability to exercise your First Amendment rights depending on what time of day it is. So as an example, you can imagine why what works at 2 p.m. in the afternoon to get someone's attention with a bullhorn to raise awareness about a cause doesn't work at 2 a.m. You can't have amplified sound after 2 a.m. That is a time restriction based on your ability to protest. Courts, if they say, oh, this is a residential area with lots of people sleeping, we think that that is a reasonable restriction. Maybe in the school context, you can't use a bullhorn while classes are in session next to the window of the class because you're creating a substantial disruption to the class and making it so that the university can't conduct the activities that we want our universities to conduct.

A government official or a school could come up with a restriction based on place. Like I just said, you can't be standing near the window where the classes are going on to yell loudly and disrupt the classroom from hearing what the teacher is supposed to be saying. So those are areas in which the government can kind of play with the levers and say, time, I'm going to give you not a full 24 hours for this space because of X reason. Place, you have to be here because of Y reason. Manner, amplified sound is an example of a manner that a government official could regulate or a school official could regulate. Those are the things the government is allowed to do, but it can never, ever, ever restrict someone's speech under the guise of a time, place, manner restriction because of their viewpoint. And so if a student feels that the administration and this should be construed as a public administration, unless you're in California in which private schools and universities are subject to the First Amendment because of our own state laws making it so a public school cannot restrict your ability to exercise your free speech rights based on viewpoint. That is a central core value of the First Amendment. It can only, a school can only impose certain restrictions based on time, place and manner. And these have to be reasonable restrictions and they have to be for good reasons that are articulated.

[00:21:55] Host: So even if you're speaking out against the school itself, against the policies of the school and students are gathering because, you know, say your school financially supports some organization or country that you feel it shouldn't. So speaking out against the school, you still have that First Amendment protection to say what you want to say, as long as the time and place provide.

[00:22:26] Thacher: Yes. So the school cannot punish you because they don't like what you're saying and the thrust of your message, even if it's super critical of the school. If it's a public school, it is restrained by the First Amendment from doing that. And that's so important because people, I think administrators react like they're humans. They're not a monolithic university, but they react sometimes with their guts and they say that's not acceptable. That's not what's happening. And they will punish students. I will also offer that we talked about disruption and civil disobedience and protest as if they're all one in the same. But there are really important distinctions between some of those terms. And I think it's useful for students to be aware of those distinctions. So how can students protest safely in the coming school year on the many issues that are presented to them to be upset about? There are many.

[00:23:29] Host: And possibly more. Probably more.

[00:23:33] Thacher: I'm sure, unfortunately, that they should know what the school's time, place, manner rules are, and they should also know that protest can cause disruption to the school. But it's not allowed to cause substantial disruption. There's always a little bit of inconvenience, disruption baked into protest. In some ways, that's the point. Right?

[00:23:56] Host: To get that attention.

[00:23:58] Thacher: Right. It's bringing attention to an issue where people may be in their own bubble and not know about that issue or why or who it's impacting. This is the goal of protest to sort of reach new groups of people and hopefully change hearts and minds, but gather a group of people together to activate on some change. That can include mass mobilizations, silent marches, loud marches, boycotts, and any number of public symbolic acts. What is different is civil disobedience. Civil disobedience is the active public and nonviolent refusal to comply with certain laws as a form of political protest.

[00:24:45] Host: And this is like UCLA campus where they were camping out or where they were occupying the building at Columbia, which is still peaceful, but you're there when you're not supposed to be there.

[00:25:00] Thacher: Yes. Arguably, some of those encampments violated their school's time, place, and manner rules, but the students were doing it with an expressive and peaceful purpose in mind. And that is a way in which people engage in civil disobedience, where they either break a law that they feel is an unjust law or break a law or rule or violate it in a way to draw attention to an unjust problem in the world. And those things are the sum of civil disobedience. It's public, it's nonviolent, and it's for a political message. If students and others want to engage in civil disobedience, that is a choice, but it should be an intentional one. And that is why it's so important to know your rights so you don't accidentally cross over from protected activity into civil disobedience and find yourself in the process of law enforcement. If that's intentional for your expressive aims, that's a personal choice, but we want everyone to know where the lines are.

[00:26:13] Host: So, if we're looking at disruption or civil disobedience, like what are ways that students could be prepared for what may happen with regards to law enforcement and being detained? You're breaking the law and you're doing this knowingly through civil disobedience. How, as a student or really anybody protesting, if you know that you're going to walk out on the freeway and shut down traffic because you want your message heard, what are ways that you can prepare for what may happen?

[00:26:46] Thacher: So, if one is gathering for a protest or that is the precursor maybe to some act that is planned, civil disobedience, you can expect to see at a school, campus security, campus police, law enforcement. You might see outside of a school setting, highway patrol officers, local law enforcement, mutual aid law enforcement, lots of different agencies. But all of these officials should not break up a gathering if people are complying with, again, those reasonable time, place and manner restrictions. There are big exceptions, or if there is a clear and present danger of a riot, a specific threat of harm to a particular person or some other immediate public safety threat, like the sustained shutdown of a building, entrance or a major roadway. Those are some of the examples of where you could get into acts of civil disobedience.

Officers then tend to give and must give before they can arrest you a dispersal order. So they'll declare something to be an unlawful assembly and then order you to disperse. An officer in that instance must give you actual audible notice of a dispersal order. So often we hear from people that the officers turn down some of the volume when giving the dispersal order or telling people to do something or it's muffled or unclear which direction you're supposed to disperse in. If, however, you do hear the dispersal order and you're choosing to remain, you may be subject to, what is termed under law as, reasonable force to break up the gathering, or to arrest someone. And what is reasonable is really dependent on the nature of that event. But it shouldn't be. I hope it doesn't become. But we see it often as acts of jabs by police, police sticks, a cuddling of individuals, unnecessarily tight handcuffing or using zip ties to handcuff peaceful protesters. And sometimes that can feel violent to people and it can be violent. So when you ask what can people expect, they may need to be able to expect some risk to their person in terms of other risks and what to expect. If you are someone who doesn't have citizenship status in our country, then you may need to think about what consequences could come from a contact with law enforcement. And also what contact with your school disciplinary process might mean if you're here on a student visa, what that could do to your status.

[00:29:46] Host: If you were detained, what would you be charged with at that point? If you– if the dispersal order was given and you sat peacefully and the line of either campus safety or police or wherever you are come and however it happens, you are detained. What would you be charged with and what can you expect at that point? And what do you have to like– I know you hear “don't say anything. Just ask for a lawyer.” But like what can a student or or any protester expect at that point?

[00:30:23] Thacher: Law enforcement officers, like I said, they're authorized to make an arrest only if they have probable cause to believe you are engaged in some unlawful conduct. So hopefully if you're exercising your right to free speech lawfully, you shouldn't be arrested. But in the context of protests and maybe failure to disperse, officers most often make arrests when they declare an assembly unlawful and they allege that a person failed to disperse. They can allege that someone disturbed the peace, that they engaged in a riot, that they resisted arrest, that they trespassed, they committed an act of vandalism, that they destroyed property or were noncompliant with some applicable traffic or vehicle safety code. Those are probably the most often cited as reasons to arrest people who believe themselves to be exercising their right to free speech lawfully.

Upon arrest, if you are faced and confronted with that situation, you may have to give your name and your address, but you do not have to answer, and listeners should not answer any questions about immigration status or about the incident leading to your arrest. You have the right to remain silent. You should use the right to remain silent to protect you. You also have the right to legal counsel. So just because someone's arrested does not mean that the charges will actually be filed. What happens next will depend on many factors.

An example of how this could work is in one of our cases at the University of California, Santa Cruz, there was a protest event around May 31st, 2024, where more than 110 people were mass arrested and banned from campus that night, like on the spot. The police arrested all sorts of folks and no charges, to my knowledge, have been filed. The UC Santa Cruz case involved 110 arrestees. Some of them were professors. Some of them may have been community members, but the large, large, great majority were students. They were excluded from campus without due process. And our position was that if you are arrested, and if you do exceed what the First Amendment protects, you still are entitled to other constitutional protections. You are entitled to not have unreasonable force used against you. You are entitled to due process, and we cannot lose sight of the fact that those constitutional freedoms are so important to protecting our First Amendment right to free speech.

[00:33:21] Host: We talked about, with the First Amendment, the freedom of press, but everybody has access to a phone. Everyone has access to a camera and can videotape anything that's happening. What rights do protesters or participants have in filming police presence or police response to a protest?

[00:33:44] Thacher: The First Amendment protects your right to receive information when you're engaging in all of your other First Amendment rights. And part of that involves being able to record police officials going about their official business. And so if you wish to take out your phone and record an officer doing something while conducting official business, you absolutely have a right to do that. You don't have a right to interfere with the interaction between that officer and whatever is happening. So you probably will be asked to stay back from that space. We recommend about eight feet from whatever you're trying to film. If the officers say, step back, I'll arrest you. You're interfering. You can say, and we recommend people say on their video recording, I'm stepping back. I'm stepping back two feet. I'm not trying to interfere because the officers tend and sometimes do say, you're resisting or you're interfering. And that's not actually what's happening, but that's what the audio captures. So you should also capture what you're doing with your words without interfering.

The right to record officers doing their official business is so important. We would not know that George Floyd was murdered if a brave person hadn't taken out their phone and started recording that interaction. So we encourage people to use this right because it really matters and it can so shift the narrative of what's going on. Our nation was so moved, rightly so, by the murder of George Floyd. And that may not have happened unless we had that cell phone recording of an officer kneeling on his neck. So use that right, people.

[00:35:36] Host: Well, what do you do with that footage? Like if you were to film something or, you know, a violent arrest of a protest or, you know, police acting overly aggressive or whatever the situation is, what should one do or what can one do with that footage?

[00:35:58] Thacher: There are so many ways that we share information. Maybe there are too many ways of sharing information today so that there's a lot of noise. We, I would encourage you to reach out to the ACLU chapter in your state because that might be a useful place to start and they can give you guidance on where that footage could go. You can always file, if you think it's warranted, a complaint against the police department. You can share it out on social media, the footage. It probably depends on what happened and how ambiguous or unambiguous the event was. Reaching out who was impacted by that moment and saying, I saw this. If you'd like to contact me, I'm happy to give you my video recording. It really is a fact dependent inquiry. But if you think you saw something that was unlawful, then you should reach out to a civil society group, the press, post on your public social media if you have that and try to raise awareness about it. I can't give you a great prescriptive answer that there's one place to go.

[00:37:05] Host: I mean, there's also a challenge or a danger with the technological advancements of if you were to film a protest or any kind of civil disobedience, that video or those photos could be used with facial recognition to penalize people who were involved who didn't even know they were being filmed at that time.

[00:37:31] Thacher: Surveillance by drones, by other people's cameras, by the law enforcement. It's a real issue. And if you engage in public protest, you engage in some public scrutiny. The surveillance by drones is something we're only starting to come to terms with and understand how expansive the network, the eye can be. I think that there are ways that people should protect themselves from doxing that I can talk about that. In addition, because of the information and the sensitive nature of what you can have on your phone, we oftentimes recommend that if people are going to a protest, leave your phone behind. Write down some important numbers on your arm. Don't take that with you to the protest. If you are going to take it with you. Make sure that you have no way for it to be unlocked unless you physically type in your passcode. If you have face ID going to a protest, then you are arrested. Then an officer can hold up your phone to your face and unlock your phone.

Some people think that if you have the thumbprint way of unlocking your phone, that might protect you. There are some cases that say that you can't be forced to turn over your thumb. But there are other cases that say and other places that may allow officers to take your thumb up to that phone. Just have it be your passcode. If it is a typed in passcode, then it is hopefully safe from searches. The only way then that an officer could search your phone is if they get a search warrant to search your phone, which is what should happen. We shouldn't have searches of our person and our vast networks of information and contacts just happening willy-nilly. The Fourth Amendment, we've talked about the First Amendment. The Fourth Amendment protects us from unreasonable searches and seizures. That means searches without a warrant. So take care of your electronic devices because that matters so much into what officers can discover about you and your friends and your political speech.

[00:39:50] Host: So with these technological advancements and the militarization of the police, how much more dangerous is it to protest today than, say, in the 60s or 70s or even just 20 years ago?

[00:40:07] Thacher: That's a very tough one, isn't it? Because it feels more dangerous. In the 60s, you had the National Guard shoot peaceful college students dead on a field for protesting against the Vietnam War. That's outrageous. That hopefully is not ever going to happen again on U.S. soil. So that's changed. But then what do we see when we look at L.A. right now? We see the National Guard being federalized to come out against largely peaceful protests in Los Angeles against ICE raids where people are being kidnapped and separated from their families off the streets by masked men. There are all sorts of scary tactical gear on police officers and National Guard's men and others when they come in to regulate a protest. The concentrations of tear gas and how they're used, the kind of what's called less lethal munitions that can be deployed to disrupt a protest, to have people clear an area, can be still quite lethal. The ACLU and the First Amendment Coalition last week just filed a lawsuit because they had credible good evidence of LAPD and others taking aim at press, members of the press, with these rubber less lethal munitions that are meant to skiff on the ground and then hit some piece of property. They were being aimed at the reporter's legs and bodies. So I think there are all the tools for protests to be incredibly intense right now. And people who go to a protest should be uplifted by the incredible power of a group of people coming together.

[00:42:01] Host: Indeed, that's the community it’s so important.

[00:42:05] Thacher: But depending on what time you're there, what message is being expressed, what message is being expressed by counter protesters who may be on site, you really have to be aware of where you're standing and know what you're willing to tolerate as a risk to your person and to your record, your immigration status. It's very personal decision making that goes on in a protest, but it's so brave. It's so vital. There's this podcast I just heard, Pod Save America, about the 3.5% rule. Have you heard of it?

[00:42:42] Host: No.

[00:42:43] Thacher: I'd love to tell the listeners about it.

[00:42:45] Host: Please.

[00:42:46] Thacher: There's increasing research right now that shows if you were feeling despondent, if you were feeling like this is all hopeless, then you are giving the president or the administrators of this government way too much power because we still have power. And there is research that shows that no autocracy, no government has ever been able to withstand at least 3.5% of the population coming out to protest. Nonviolent resistance involving 3.5% of any population has always toppled the powerful and the government. That means in the U.S. that if 12 million people came out to exercise their First Amendment freedoms to free speech and protest and freedom to petition the government, we may have a shot at changing the direction of our country, which feels to so many so bleak right now. And we need to exercise those rights. We need to come together on some of the core values that make us American.

[00:43:50] Host: And that's people of all age. I mean, that's my mom and her 70-year-old friends. That's me in my age bracket.

[00:43:57] Thacher: Exactly. Even though there are scary consequences that can happen if you stick your neck out, if we all stick our neck out together on some cause, we don't have to agree on every cause, then we are showing solidarity and we will be okay. But if you let only a few people stand up to the powerful, then you are in a very big world of pain and we could have an authoritarian regime take over without actually meaning for that to happen. I worry about that. I really do.

[00:44:33] Host: We'd like to thank Chessie Thatcher and the ACLU of Northern California. Chapters podcast was produced by Past Forward and made possible with support from Chapman University and California Civil Liberties Public Education Program, a state-funded grant project of the California State Library. For more information, visit pastforward.org, chapman.edu, and library.ca.gov.