Chapter 1 defines the concepts of “protest” and “dissent.” It defends public protest on marketplace, self-government, autonomy, and tolerance grounds. The chapter explores the communicative and other characteristics of public protests and demonstrations. It examines public attitudes toward protest and protest movements and the state’s typically violent and negative responses to public protest. The chapter examines the typical purposes or goals of public protests. Finally, it responds to several arguments about protest “fatigue” and the continued efficacy of public protest as a means of democratic change.

Chapter 5 examines and criticizes how dissent is managed on university campuses. Focusing on the outdoor and open areas of campus, it criticizes the use of permits, fees, zoning, and other aspects of the managerial system that apply outside campus gates. The chapter urges university officials to adopt a default standard of open inquiry and dissent in the non-professional and non-pedagogical spaces on their campuses. Campus administrators should carefully review their free speech policies not only to ensure they comply with the First Amendment (which is required in the case of public universities), but to ensure that campuses retain the “spirit of rebellion” that animated them in the past.

Chapter 3 takes a closer look at place-specific restrictions on public protest. It examines the rules that apply under the First Amendment’s “public forum” and “time, place, and manner” doctrines. These doctrines are the foundation for enforcement of public order laws, the zoning of protest, and the targeting of specific protest locations including healthcare facilities, abortion clinics, funerals, and residences. The chapter critically analyzes the basis for and scope of spatial restrictions on public protest and dissent.

The Introduction discusses the importance of public protest even in a digital era. It uses the mass demonstrations that followed George Floyd’s murder to highlight both a desire to participate in public dissent and the challenges that restrict that participation. Those challenges include police aggression and violence, enforcement of vague public order laws, restrictions on the place where protests can occur, and attitudes about public contention. The idea of a body of protest law and the concept of “managed dissent” are introduced and explained.

Chapter 4 addresses the rising civil costs of dissent. It examines the various costs and liabilities that apply to protest organizers, participants, and supporters. These include permit fees, damages resulting from personal injury lawsuits, statutory penalty enhancements, and loss of public benefits. The chapter makes the case for stricter First Amendment scrutiny of these costs and argues that certain fee-shifting arrangements and civil causes of action violate the First Amendment. It encourages public officials to commit to reducing rather than piling on the costs of dissent.

Chapter 7 examines the extent to which federal, state, and local governments can restrict public protest during public health and civil unrest emergencies. The chapter describes how the current system of emergency powers affects public protest rights, including through curfews, limits on movement, and bans on public gatherings. It rejects the notion that the First Amendment and other rights can be “suspended” during declared or undeclared emergencies and argues for strict judicial review of measures that ban or severely restrict public protest during emergencies. The chapter also addresses the role of the federal government, including U.S. armed forces personnel, in policing civil unrest and prosecuting protest-related offenses. It advocates a minimal federal presence and function at public protest events and urges federal cooperation with states and localities.

Chapter 6 examines the special challenges public carry of firearms pose for public protest. Arming public protests is incompatible with peaceful forms of dissent. It threatens to intimidate protesters and chill protected First Amendment activity in the public square. The chapter proposes several measures that can reduce or eliminate these harms, including prohibitions on public carry at permitted events, bans on armed groups in public places, and place restrictions deemed presumptively valid under the Second Amendment. The Supreme Court has recently issued an expansive interpretation of public carry rights, based on the nation’s historical practice of gun regulation. But there is historical support for at least some restrictions on public carry at or near public protest events. Even if the best that can be done is a ban on open carry, that would alleviate some of the most nefarious effects public carry has on public protest.

The final chapter collects and reviews several proposals that can help preserve public protest and dissent for future generations. The reform agenda for the law of public protest includes strengthening rights to assemble and petition governments, preserving breathing space in public for dissent and contention, reforming protest policing, amending public disorder laws, protecting and encouraging campus protest, disarming public protests, and reigning in governmental emergency powers as they affect public protest.

Chapter 8 deals with the potential remedies available to protesters when their constitutional rights are violated. It focuses on damages remedies intended to make protesters whole for such injuries. The law of public protest severely restricts such remedies. Under principles of “qualified immunity,” the law generally immunizes all but the most incompetent officers from civil liability. Empirical evidence shows that in protesters’ First Amendment and Fourth Amendment cases, defendants’ qualified immunity claims are granted 60 percent of the time. Protesters also face nearly insurmountable obstacles in terms of holding municipalities liable for constitutional violations. The Supreme Court has recently limited protesters’ ability to bring First Amendment “retaliation” claims. Finally, the Court has all but sounded the death knell for First Amendment damages claims against federal officials. The chapter joins the chorus calling for qualified immunity reform. It also encourages states and localities to restrict officers’ ability to invoke qualified and other immunities, and to create causes of action against officials for violations of state constitutional law.

Chapter 2 lays out the managerial system that applies to protest in the U.S. It uses a protest typology to describe the scope and limits of protesters’ rights under the First Amendment. The chapter identifies the public forum and time, place, manner, and other restrictions that limit protest activity. It addresses protest permits, policing tactics, enforcement of public order laws, limits on press activity at protests, and other elements of the “managed dissent” system. The chapter sets the stage for the book’s argument that public protest is over-managed in ways that make protest more costly, less safe, and less effective.