When Does Protesting Become Illegal?

On May 1, 2024, several days into an encampment on the University of California, Los Angeles campus, a public university, people on both sides of the conflict between Israel and Hamas had been engaging in separate, peaceful protests, with some supporting Israel and others protesting attacks on the Palestinian people. Some marched. Some had set up tents on campus property, reportedly blocking the entrance to a library. The day ended with violent clashes between the groups and multiple injuries.

CBS News reported, “Protesters continued to fight each other well past 11:30 p.m., throwing fireworks at the encampments while melees broke out past the barriers. One of the melees involved a person swinging what appeared to be a skateboard. Counter-protesters also tossed traffic cones, a scooter, wooden pallets and what appears to be smoke bombs at people along the barrier to the encampment.”

Eventually, college officials asked police to remove the encampment, saying it violated UCLA policy and prevented other students from freely entering the library.

RELATED: Answering 21 FAQs about protesting on college campuses

From January 2023 to August 2024, there were more than 18,000 protests in the United States, 125 of which were deemed riots, according to the research website Statista.

A person or group participating in a peaceful public protest or demonstration is protected by the First Amendment freedoms of speech, assembly and petition. But that protected activity can cross the line into unlawful conduct or unlawful assembly when it turns violent, becomes unsafe, involves trespassing or violates other laws such as health or noise ordinances.

When does protesting become illegal?

Protesting can become illegal when it becomes violent

Such cases may include when:

• A protester or group becomes violent. Anyone who commits an act of violence against another person, destroys or vandalizes property or engages in other illegal acts can be arrested.
• Protest leaders or speakers can be held accountable when they intentionally incite others to immediate violence, vandalism or harassment, even when expressing a protected idea or view. The Supreme Court ruled in the 1969 case Brandenburg v. Ohio that free speech protection extends until the moment it incites or is intended to incite “imminent lawless action.” In 1973, the court reinforced in Hess v. Indiana the “imminent violence” test set out in Brandenburg. It overturned the conviction of a demonstrator whose speech, the court said, was “nothing more than advocacy of illegal action at some indefinite future time.”

Protesting can become illegal when it moves into places closed to protest

Some examples of instances when peaceful protests are no longer protected by the First Amendment based on location include when:

• A protester or group moves from public spaces onto private property — say, a car dealership or a store parking lot — without permission from the property owner. Some states, including California and New Jersey, provide limited protection for protests in private spaces usually open to the public, such as shopping centers.
• A lawful demonstration moves from a public space into a restricted area such as a military base or other secure government buildings or installations.
• Demonstrators violate various court-established protest “bubble zones” litigated through the years around abortion and health care facilities or places of worship. Also, the Freedom of Access to Clinic Entrances Act of 1994 makes it illegal to harm, threaten or interfere with an individual “obtaining or providing reproductive health services” or damage a facility “because such facility provides reproductive health services.” A new Trump administration order now instructs federal prosecutors to enforce the law only in “extraordinary circumstances” or in instances when death, extreme bodily harm or significant property damage result.
• Demonstrators protest in the immediate area around the U.S. Supreme Court, violating a revised rule, Regulation 7, that limits demonstrations there to public sidewalks bordering surrounding streets in Washington, D.C. According to the revised rule, “The term demonstration includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers”
• More broadly, a 1950 federal law makes it illegal to picket or parade in front of a courthouse or a judge’s home “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge.”

Protesting can become illegal when it becomes unsafe

Instances of unsafe protests may include when:

• There is a clear and present danger to public safety, such as when demonstrations expand from a public sidewalk onto the lanes of a busy highway.
• An otherwise lawful protest violates health or sanitation regulations, such as long-term occupation of a public campus space or a public-access beach that has no sanitary facilities.

Protesting can become illegal when it violates other legitimate limits on protest that are unrelated to the message the protesters are sending

Such legitimate limits include the following:

• Time, place and manner restrictions forbid protest activities at certain hours or locations, such as marching at 3 a.m. through a residential area or making loud speeches near a hospital. Such laws must be narrowly designed to ensure minimum intrusion on First Amendment rights.
• When protesters violate temporary, specific curfews that can be justified to protect public safety or to prevent imminent violence or theft involving property.
• Authorities may disband a protest or other protected demonstration activity, if they have good reason to believe violence is imminent, or when the activity has failed to obtain or observe permit conditions.
• Permits for marches, demonstrations or protests may set certain requirements or limits: fee, route, times of day or size of the group, for example. But approval of a permit must not be based on the content or views expressed, and permit requirements or fees cannot be used to discourage the activity.
• Permits may be used when the protected activity takes place in a public space intended for other specific purposes, such as national parks or the National Mall. National Park Service guidelines say a permit is required for any group larger than 25 people, and certain protest activities may be limited to specific areas within parks.
• Many states have laws criminalizing the wearing of a mask during a protest or march or other public activity, generally adopted decades earlier in response to Ku Klux Klan activity. Such laws vary by state and must be rooted in the prevention of harassment or intimidation.
• Some states revised those laws during the COVID-19 outbreak to allow masks in public for health reasons. But CNN and NBC News reported in 2024 that many states are considering eliminating that exception postpandemic. Other cities and states have adopted limited bans on wearing specific kinds of masks in public: Philadelphia’s ordinance, for example, prohibits ski masks.

RELATED: How to organize a protest: A step-by-step guide to peaceful assembly

What are ongoing questions and cases about protesting becoming illegal?

A 2017 lawsuit questioned the liability of a protest organizer for illegal acts or injuries caused by others, including counterprotesters, during a demonstration. During a protest a year earlier organized by civil rights activist DeRay Mckesson, a police officer was struck in the face by a rock or piece of concrete thrown by an unidentified person, losing teeth and suffering a brain injury.

After years of motions and appeals to both the 5th U.S. Circuit Court of Appeals and to the U.S. Supreme Court, a U.S. District Court in Louisiana in July 2024 dismissed the long-running claim against Mckesson.

The dismissal followed an April 2024 decision by the Supreme Court not to consider the case, which included a statement from Justice Sonia Sotomayor that a 2023 Supreme Court decision in Counterman v. Colorado had clarified the legal standard that the original trial court should follow in “any future proceedings in this case.”

The Counterman decision, which involved true threats unrelated to protest, set a general standard of liability that requires a person to have “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

The District Court dismissed the lawsuit based on that Counterman decision, under which it said Mckesson could not be held legally liable for injuries inflicted by another person during a protest he had organized, as there was no evidence showing that he intended for the violence to take place or negligently disregarded a potential for violence.

In the latest development in the case, in December 2024, the police officer appealed the dismissal to the 5th Circuit.

In a more recent example, a high-profile lawsuit went to trial in February 2025, with a Texas pipeline company suing the environmental organization Greenpeace for “millions of dollars of damages” over demonstrations and other actions against a proposed pipeline project in North Dakota.

A North Dakota jury in March 2025 found Greenpeace liable for more than $660 million in damages for defamation and other claims. Greenpeace is appealing the decision.

Before the verdict, Greenpeace USA Interim Executive Director Sushma Raman called the lawsuit “a critical test of the future of the First Amendment, both freedom of speech and peaceful protest. … A bad ruling in this case could put our rights and freedoms in jeopardy for all of us, whether we are journalists, protesters or anyone who wants to engage in public debate.”

However, Energy Transfer Partners’ lawsuit claimed Greenpeace used “means far outside the bounds of democratic political action, protest, and peaceful, legally protected expression of dissent.” The company claimed Greenpeace tactics involved “coordinated trespassing, vandalism and violence by pipeline protesters.”

The lawsuit stemmed from 2016 and 2017 protests against the pipeline near the Standing Rock Sioux Tribe's reservation, which maintained the pipeline would threaten its water supply. The Dakota Access Pipeline was completed and has been transporting oil since 2017, according to The Associated Press.

What is the overall First Amendment consideration for when protesting becomes illegal?

U.S. Supreme Court decisions place limits on how the government can restrict, regulate or punish public protest, mainly through two rulings, both from 1940: Thornhill v. Alabama and Cantwell v. Connecticut. Those decisions say government must respect the right to peaceful and truthful discussion of matters of public interest and cannot punish the “free communication of views.”

However, the First Amendment freedom of assembly is not unlimited. It does not protect violent protests or illegal acts within a protest, like blocking a street. Nor does it protect protest speakers who incite others to engage in immediate acts of violence, who threaten others or who seek to provoke others into a violent response.

Gene Policinski is a senior fellow for the First Amendment at Freedom Forum. He can be reached at gpolicinski@freedomforum.org.