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Can my free speech be restricted because of what I say, even if it is controversial?

No. Both the First Amendment of the U.S. Constitution and Article I, Section 7 of the Iowa Constitution prohibit restrictions based on the content of speech.

However, this does not mean that the Constitution completely protects all types of speech activity in every circumstance. The government is allowed to place certain nondiscriminatory and narrowly drawn “time, place and manner” restrictions on the exercise of free speech and expression rights.

But any “time, place or manner” restrictions must apply to all speech regardless of its point of view. For instance, the government may validly impose permit requirements for large groups using parks or limits on the loudness of sound amplifiers.

The government may also limit speech or activity that is overly disruptive, such as shouting in a quiet auditorium to interrupt a speaker, as long as officials have requested the protester to stop the disruptive behavior, and the restriction is not based on viewpoint. However, whether behavior is disruptive depends on context. For example, shouting at an outdoor rally may be wholly appropriate.

Finally, some speech is not protected, like “true threats” of violence or speech that a court could determine is an “obscenity.”

Where can I engage in free speech?

Generally, all types of expression are constitutionally protected in traditional “public forums” such as streets, sidewalks and parks. In addition, you may have a right to speak in other public locations that the government has opened up to unrestricted public speech, such as the plazas in front of government buildings or outdoor areas of public— not private—universities and colleges.

There are different rules for different locations. Learn the rules for the location where you are planning to protest or demonstrate before your activity begins.

Keep in mind that excessive noise or disruption, obstructions of sidewalks or doorways, or harassment of unwilling passers-by could be used by officials to end your activity. Observe traffic rules and other reasonable time, place, and manner restrictions. But you have a right to be heard, and officials shouldn’t direct you to a route that doesn’t reach your target audience.

What about speech on private property?

The general rule is that the owners of private property may set rules limiting your free speech on that property. If you disobey the property owner’s rules, they can order you off their property and have you arrested for trespassing if you do not comply. Your speech may not be restricted on your own property, or with the property owner’s consent. Privately owned shopping malls are considered private property in Iowa, even though they are held open to the public.

Do counter-demonstrations have free speech rights too?

Yes. Even though counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their displeasure.

Police are permitted to keep two antagonistic groups separated but should allow them to be within the general vicinity of one another. 

If I am a minor, can I demonstrate at night?

Yes. Although minors may generally be prohibited from being out after a certain time, curfew laws must provide exceptions for fundamental rights such as marches.

Do I need a permit?

Not usually. However, certain types of events require permits. Generally, these events are:

• A march or parade that does not stay on the sidewalk, and other events that require blocking traffic or street closure;

• A large rally requiring soundamplifying devices; or

• A rally at certain designated parks or plazas.

Many permit procedures require that the application be filed several weeks in advance of the event. Barring special circumstances, however, notice requirements greater than three days are typically not constitutional. Additionally, the First Amendment prohibits such an advance-notice requirement from being used to prevent rallies or demonstrations that are rapid responses to unforeseeable and recent news events. That means even permit ordinances must allow for spontaneous demonstrations.

Also, many permit ordinances give a lot of discretion to the police or city officials to impose conditions on the event, such as the route of a march or the sound levels of amplification equipment. Such restrictions may violate the First Amendment if they are unnecessary for traffic control or public safety or if they significantly interfere with effective communication with the intended audience. A permit cannot be denied because the event is controversial or will express unpopular views.

Without a permit, where can a march take place?

If marchers stay on the sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic.

Do I have a right to picket on public sidewalks?

Yes, and this is also an activity for which a permit is not required. But picketing must be orderly and non-disruptive so pedestrians can pass by and entrances to buildings are not blocked. Additionally, cities may constitutionally prohibit picketing in residential areas.

What do I do if police stop me?

• Stay calm, be polite, and don’t run. Don’t resist, argue, or obstruct the police, even if you are innocent or you believe that the police are violating your rights.

• Make sure to keep your hands where police can see them.

• Ask if you are free to leave. If the officer says yes, calmly and silently walk away.

• You have the right to remain silent and cannot be punished for refusing to answer an officer’s questions. If you wish to remain silent, tell the officer that you wish to remain silent.

• In Iowa, there is no law requiring you to give your name to police if asked to identify yourself during a stop, although police can ask you for your driver’s license, registration, and insurance if you are the driver during a traffic stop. If you are a passenger in a car, you are not required to identify yourself.

• Do not give police a false or fictitious name.

• You do not have to consent to a search of yourself or your belongings. But police may “pat down” your clothing if they suspect a weapon.

• You should not physically resist, but you have the right to refuse consent to any search. If you do consent, it can affect you later in court. Do not lie about your citizenship status or provide fake documents to the police.

• If you are arrested, say you want to remain silent and ask for a lawyer immediately. Then don’t say anything, sign anything, or make any decisions without a lawyer.

What if I'm under arrest?

  • Do not resist arrest, even if you believe the arrest is unfair.
  • Say you wish to remain silent and ask for a lawyer immediately.
  • Don’t give any explanations or excuses. Don’t say anything, sign anything, or make any decisions without a lawyer.
  • Even after you are arrested, if police ask for your consent to search your belongings, including your phone, you are not required to give consent, and giving consent could be used against you later.
  • In Iowa, you have a right to call a lawyer, a member of your family, or both. Officers may not tell you about your right to call your attorney and family member, so you should affirmatively and clearly ask to make these calls. At the jail, the officers may ask you to sign a form that you have made all the calls you wish to make. Don’t sign anything without a lawyer. When you make a call, the call usually occurs in the presence of police, but your attorney must be allowed to see and consult with you in private at the jail or other place where you are being held.

What do I do if my rights have been violated?

• The street is not the place to challenge police misconduct. • Don’t physically resist officers or threaten to file a complaint.

• As soon as you can, write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details.

• Get contact information from witnesses.

• If you are injured, take photographs of your injuries (but seek medical attention first).

• Once you have this information, you can file a written complaint with the agency. In some cases, you can file a complaint anonymously. You can also seek the assistance of an attorney or the ACLU of Iowa.

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About the ACLU

 The ACLU of Iowa Legal Department is not a legal aid services organization. We bring a select number of impact cases to defend and promote the fundamental guarantees of individual liberties protected by the federal and state constitutions. If in Iowa and feel your constitutional rights have been violated, email the ACLU of Iowa legal program: legal.program@aclu-ia.org.

Arrested for Protesting? 

The National Lawyers Guild (NLG) in Iowa may be able to help you find a lawyer. The Iowa contact is  Sally Frank at sally.frank@drake.edu or 515-271-3909.

If you know ACLU of Iowa legal observers were present, have your NLG attorney, public defender, or private attorney contact the ACLU of Iowa legal program at 515-243-3566  or at  legal.program@aclu-ia.org

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