Why You Should Care About Protest Waiting Periods

Most days, you can find me defending people’s First Amendment rights here at FIRE. Yesterday, I exercised my own First Amendment rights, heading to Philadelphia International Airport for one of the many protests that took place nationwide following the executive order on immigration signed by President Trump last Friday.

For me, that experience brought into sharp relief the reasons for some of the tasks we perform at FIRE on a daily basis, and I wanted to share some thoughts on that in the hopes that it might inspire some of you, too. The fact that some of the most common campus restrictions FIRE sees would have prevented this weekend’s protests at many colleges and universities reminded me just how critical that day-to-day work actually is.

(To be clear, this is not intended to be a political post. FIRE takes no position on immigration issues, and what I have to say about yesterday’s protest would apply equally to any protest about a rapidly unfolding situation.)

FIRE has long noted that many university policies require students to obtain substantial advance notice in order to hold a protest or demonstration on campus. For instance, students at Lake Superior State University must submit an event application at least 72 hours before holding a demonstration or rally on campus. At Boston College, “applications for permits for all activities in the nature of a public speech, rally, demonstration, march, or protest must be submitted a minimum of 48 hours in advance to the Dean of Students.” At Franklin & Marshall College, “[a]ny individual or group seeking to protest at an event must register their request with the College at least 48 hours (or 72 hours if the event is to occur on a holiday or during a weekend) in advance of the event.” And that’s just to name a few.

On more occasions than I can count, I have explained that such rules impermissibly restrict the right to protest because demonstrations are often spontaneous responses to developing events, and requiring people to wait days to protest can deprive them of the immediacy of their message in a way that greatly affects its impact.

Several years ago at the University of Alabama, for example, a pro-choice student group wanted to distribute leaflets on campus in response to a pro-life student group’s event. They were ordered to stop distributing until they obtained a permit, but when they applied for one, they were told it would not be approved in time for them to distribute their flyers during the pro-life event. Instead, as FIRE’s Peter Bonilla said at the time, the university was going to force the group to “wait until their message has become yesterday’s news before being granted the right to speak.”

This weekend, I was again reminded of why the right to demonstrate spontaneously can be so critical to the expression of a message. The protest I attended Sunday was scheduled in advance. But when word spread Saturday night that people were actually being detained at the airport under the new executive order, many people—including local and state elected officials—immediately gathered at the airport (and at other airports around the country where people were being detained) to demonstrate. The images from those spontaneous demonstrations were very powerful, were seen throughout the world, and may even have led to an earlier release of those being detained.

Were an analogous situation to arise at university that forbids spontaneous protest, this simply would not have and could not have happened. One wonders: Would the detainees still be at the airport today if protesters had been made to wait three days to get a permit, as they are on so many campuses? While I believe that in this case it was still meaningful to protest on Sunday, the fact is that the people detained at the airport had already been released, diminishing the sense of extreme urgency that had driven people to the Saturday night protest.

The second thing that came to mind for me yesterday was how many schools place burdensome prior restraints on demonstrations—quarantining them to small areas of campus, or limiting their size, for example—because they believe order on campus will utterly break down if they don’t. FIRE has never questioned universities’ right to maintain order on campus, but expecting general disorder in advance is simply a recipe for restrictive, and in most cases unjustifiable, rules. Universities can keep order by maintaining reasonable time, place, and manner regulations, and punishing violations after the fact, rather than restricting demonstrations before they begin.

This weekend, we saw numerous international airports—where security is a huge concern—handle large and spontaneous protests without major incident. Colleges certainly have legitimate security concerns as well, but it’s not too much to expect our colleges and universities (where one can expect protest to break out significantly more frequently than the airport) to be able to handle a peaceful protest or two without institutionalizing draconian security measures that even the TSA and airport police don’t deem necessary.

My experience yesterday absolutely bore this out. The demonstration was quite large—5,000 people according to some reports. (You can see the scene for yourself in the picture above.)

And yet, for the two hours I was there, the whole thing was completely respectful and orderly. I was actually standing next to a policewoman who was able to watch calmly the whole time—even taking a moment to show my daughter that her gloves, too, had sparkles on them. This was a huge group of people, with emotions running high, but respect and order prevailed.

Some people don’t understand why FIRE is so critical of universities that screw up the seeming minutiae of protest policies—for example, what times of day demonstrations can be held, at what locations on campus, how many people can attend before a demonstration needs to be pre-approved by the university, etc. It’s certainly not because we lack for work. We fight those restrictions because each and every one of them could have a potentially huge impact on people’s ability to express themselves in response to a major unfolding event like the ones we saw this weekend—and, in the future, maybe about an issue you personally care about as well.