Countless protests across the country and worldwide following the May 25 death of George Floyd may have you inspired to march, donate or speak out about law enforcement and race relations in America.
But you might have some lingering questions on the consequences of doing something so public at a time when technology allows anyone to create direct links between our personal lives and our professional ones.
Consider some headlines during the protests. More than 10,000 protesters have been arrested, according to an Associated Press tally. A brewer in Philadelphia lost his job over an Instagram post that advocated violence against police. A Chicago Transit Authority bus driver sued his employer over his suspension from discussing with other drivers concerns about transporting police during protests.
And others have lost jobs due to physical violence against protesters, threats against a governor, a mocking recreation of Floyd’s death — not to mention social media posts that include an “ALL LIVES MATTER” tweet, a Facebook post calling Black Lives Matter protesters “thugs” and “wild animals” and another Facebook message that read, “Run the dirt down,” on a photo of protesters on Long Island.
To be clear, this is not an argument against exercising your First Amendment rights. Eddrea McKnight, a Houston lawyer representing about 10 protestors, recalled telling her clients “I hope this doesn’t discourage you from protesting.”
“Every last one of them said, ‘Absolutely not,’” McKnight said in an interview. “‘We’re going to continue to speak out against injustice.’”
But one might still wonder — even if I’m on the right side of history, do I have to worry about what will happen this week with my neighbors and at work? Below is a guide to what you should consider legally before, during and after a protest to help answer some lingering questions before you speak out.
At the protest
Every American has the First Amendment right to peacefully assemble and protest. However, government agencies and police officers can regulate when, where and how public assemblies take place as long as those regulations don’t undermine the right to protest and as long as the rules are written and enforced in a way not endorsing a viewpoint or certain content, according to the American Civil Liberties Union nonprofit.
Public streets, sidewalks and parks are considered traditional public forums for civic debate and protest. Blocking streets, however, often requires a permit. Police may try to clear protesters from roadways, said Emerson Sykes, staff attorney with the ACLU’s Speech, Privacy and Technology Project, in an interview.
Plazas in front of government buildings are okay if you don’t block access or interfere with the building’s purpose. Officials can’t regulate private property — that’s up to the property owners. And remember, no matter how impassioned you feel, counter protesters have the same rights as you.
Do some homework before you leave home to protest just in case you are arrested. Look up law firms in your area that have offered free or pro bono representation to arrested protesters. Look up local nonprofits and bail funds to get you out of jail if you are financially burdened. Write those numbers on a notepad, your shirt or even your arm so you can access it even if you lose your phone.
Even though protesting is a public action, the Electronic Frontier Foundation notes that people in targeted communities might need to protect their identities from threats that include publishing private or identifying information about them online, law enforcement surveillance, corporate surveillance and digital, financial and even physical harassment.
Automated license plate readers on police cars and street poles can record plates, times, dates and locations for cars, which might make one think twice about driving to a protest. Facial, iris and tattoo recognition technologies might spur protesters to cover faces and distinguishing marks on their body or even bring a change of clothes.
Though photography in public areas doesn’t require the photo subject’s consent, photographers might want to ask permission before taking pictures that include a face. They may even want to take a picture less likely to identify individuals, such as from behind.
Cash avoids the tracing associated with using credit cards. Mobile phones, Bluetooth, Wi-Fi and location services can lead to identification and location tracing, prompting some people to leave phones at home or set them on airplane mode, Sykes said.
You might consider bringing anything you need in case you end up spending the night in jail. Driving places may expose your license plate number, traceable to the car’s owner. And social media posts could give your identity and location away as well as the identities of those around you.
It’s probably a good idea to protest with a group to make sure someone can unobtrusively record confrontations with police if they occur. Officers cannot demand to see photos or videos without a warrant. And they cannot erase any electronic data ever.
If police order you to disperse — a last resort — they must provide warnings, reasonable time to comply and consequences of not dispersing before you are arrested or charged, according to the ACLU.
When you are protesting, police can still arrest you for crimes such as obstructing justice, interfering with investigations and resisting arrest.
If you are detained, remain calm and do not argue, even if you think the officers are wrong. You can ask an officer if you are free to go and calmly walk away if they say yes. If you are detained, you are allowed to ask what crime you’re suspected of committing. “Your safest bet is to comply with police orders,” Sykes said.
After the handcuffs
Arrests costs will include bail, fines, booking fees, attorney fees, court fees. A TV station in Jacksonville, Fla., reported bail amounts of more than $1,000, with the Jacksonville Community Action Committee reporting amounts as high as $5,000.
Some cities, however, have enacted bail reform to allow free release from jail for minor offenses with a written promise to return for future court dates — a process known as getting released on one’s own recognizance.
Tucker Moore Group managing partner Charles Tucker Jr., who is representing a number of protesters pro bono, told Marketplace that an arrest can range from $10,000 to $12,000 to resolve an arrest with nothing permanent on your record.
McKnight, the Houston lawyer, said that her city did a mass dismissal of hundreds of protestors’ cases. But expungement, so no employer or someone reviewing a housing application can see that a protestor was arrested, can cost between $2,500 to $5,000 and take three years.
New protestors can underestimate the time it takes to go through an arrest, booking and release, said Jennvine Wong, a staff attorney with The Legal Aid Society’s Cop Accountability Project. Some protestors have waited at least 12 hours before release, she said in an interview. And for those waiting for Miranda rights, police only read those before an interrogation.
Anyone arrested should remember any future court dates. Missing a scheduled court appearance can result in an arrest warrant. And summons have gone from a typical 45 days from arrest to up to 90 days.
You have a constitutional right to remain silent no matter where an officer speaks with you —
though some states do require that you give your name to an officer along with license, registration and proof of insurance if you are driving. You don’t have to consent to a search of yourself or property, though officers are allowed to pat you down for weapons before placing you into a police car.
As of February 2018, states that have laws requiring you to give your name to officers include Arizona, Arkansas, Colorado, Utah, Rhode Island and New York, according to the Immigrant Legal Resource Center. States without the rule include West Virginia, Wyoming, Tennessee, South Dakota, New Jersey, Oklahoma, Pennsylvania, Oregon, Michigan, Mississippi and Texas.
Refusing to speak with an officer isn’t a crime, but lying to one is. Assume everything is on the record. You might want to talk to a lawyer before answering any questions. You can give the officer the name and number of a lawyer or ask for one.
It can be helpful, when possible, to write down everything you remember — officer names, badge numbers, patrol car numbers, the agencies involved. Photograph any injuries. If you think police have treated you poorly, you may file written complaints with internal affairs and civilian complaint boards with the agencies.
Know that you may have to stay the night in jail depending on the timing of your arrest. If you miss work due to an arrest, you may be opening yourself up to termination, Derrick Morgan Jr., an attorney at the law firm Saeed & Little, who is also representing protesters pro bono, told Marketplace.
People should know that not every protest involves tense situations with police, Sykes said. He previously joined a protest with elementary school children where cars honked horns in support and the police presence was minimal. “Think about what your risk appetite is,” he said.
Protestors who have experienced the justice system have been encouraged to share their stories with city council members and other government officials to help push changes, McKnight said. “So much has changed because of the protests,” she said. “Protesting does work.”
Depending on your location, you may have some legal protections from firing over political activities.
States that prohibit retaliation or discrimination based on political activity include South Carolina, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada and Utah, according to an article by Fox Rothschild partner Catherine Barbieri and associate Liku Madoshi. Some cities, like Seattle and Madison, Wisc., have their own laws against retaliation or discrimination.
Still, employees can lose jobs when running afoul of workplace policies. Jonathan Bell, a New York-based labor attorney, said most employees in America are considered at-will, meaning employers can cut them for just about any reason, with some exceptions, such as membership in a protected class like race or age, whistleblowing activity, activity covered by the National Labor Review Board and wage disputes.
Employees who have contracts, like doctors with hospitals, should double check for termination clauses.
Firing employees for activity outside of work is rare despite a lack of federal protections for private sector employees, said Emory Moore Jr., an associate at McDermott Will & Emery in Chicago. Some states, like California, explicitly state political activity as protected activity. But in most states, employees are protected only from employers forcing them to vote a certain way or support particular candidates.
Moore identifies three actions outside of work that can result in disciplinary action from employers. Employees may face disciplinary action for disrupting operations — like skipping work to protest without approval or taking sick leave when you’re not sick.
Employees risk discipline when outside activity affects fitness for the job — like an arrest. Moore said employers should focus on the conduct underlying the arrest to avoid consequences for employees of color who are at a higher risk of arrest.
Finally, employees that conduct activity that could harm the employer’s reputation — like a racist social media post or racist comments while wearing a work uniform — could face discipline.
“Outside of these three forms of misconduct, most employees will not be disciplined for engaging in protest activity,” Moore said. “That being said, as the line between home and workplace thins during this pandemic, so does the line between individual political self and employer representative.”
Employers should still show equality to the political behavior and speech they monitor. Disciplining employees for posting something critical of the Black Lives Matter movement but not for other political comments might imply a preference, according to an article by Grant Gibeau of Felhaber Larson.
And the court of public opinion is a strong motivator for employer actions. Starbucks noticeably reversed a policy after backlash for preventing clothing and accessories with “Black Lives Matter”-related messages while encouraging LGBTQ buttons and attire.
Employees might see greater protection under the federal National Labor Relations Act if their complaints are related to workplace conditions, such as criticizing an employer for promoting only white employees. In 2018, the National Labor Relations Board protected Latinx employees who attended “Day Without Immigrants” rallies instead of work if they previously complained of workplace mistreatment and connected those complaints to protesting, Gibeau said.
An employee who compares “Me Too” sexual harassment covered in the media with his or her own work culture or who advocates for pay equity through political activity might be protected from discipline, according to an article by partners Stephanie Gaston and Anne Yuengert of Bradley Arant Boult Cummings. Unionized employees may have additional protections in their contracts.
Employees of the federal government are allowed to protest as long as they are off duty and not in uniform. But those with security clearances might want to make sure they don’t risk those if arrested at a protest, Sarah Martin, an attorney at Kalijarvi, Chuzi, Newman and Fitch, saidl.
Federal employees should be careful about advocating for financial contributions, however. Make sure the cause you’re supporting isn’t associated with a candidate or political party before posting or asking others to donate, Martin said. Check with an ethics officer or similar position.