The Right to Protest — and the Wrong Way to Do It

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June 27, 2025

The Right to Protest — and the Wrong Way to Do It

Across the country and here in Vermont, we’re seeing more and more so-called protests that bear little resemblance to what the Constitution protects. People block highways, surround cars, shut down city streets, and sometimes loot or threaten anyone who dares to keep going about their lives. The claim is always the same: “We have a right to protest.”

Yes — but that right is not a blank check.

The First Amendment guarantees the right to peaceably assemble to petition the government for a redress of grievances. That means you aim your protest at lawmakers and public officials — not your neighbors, not bystanders, not the woman trying to pick her kid up from school.

Protest the Government — Not the Public

Let’s be blunt: Disrupting the lives of people who have no agency to fix the problem is not protest — it’s coercion.

The Constitution does not protect your right to block traffic and scare families in the name of a cause. Nor does Vermont’s Constitution. In fact, Article 20 of the Vermont Constitution, “That the people have a right to assemble together to consult for their common good—to instruct their Representatives—and to apply to the Legislature for redress of grievances, by address, petition or remonstrance.” mirrors the First Amendment, guaranteeing that people may peaceably assemble to, “petition the Government for a redress of grievances”. Not the gas station clerk. Not the random driver. The Legislature.

The Right Place for Protest

Even if you disagree with the crowd’s cause, January 6th started in the right place: a protest aimed at government, at lawmakers. It turned illegal when it turned violent — but at least it was targeted at the source of the protesters’ grievance.

Compare that to recent demonstrations where groups have shut down highways or vandalized and looted stores over immigration enforcement. Those actions didn’t target the people who make federal law. They targeted everyday citizens — people who had zero authority to change anything.

That’s not protest. That’s cowardice hiding behind a crowd.

What the Courts Say

This isn’t just opinion — the law backs it up.

In Cox v. New Hampshire (1941), the Supreme Court upheld the right of cities to require permits for public marches. Why? Because blocking roads without coordination isn’t protest — it’s obstruction.

In Adderley v. Florida (1966), the Court said protestors couldn’t occupy the driveway of a jail, even though it was government property. It was not a public forum — and government has the right to keep its operations running.

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The Vermont Case Everyone Forgets

One of the clearest rulings comes from right here in Vermont: State v. Warshow (1979).

Anti-nuclear protesters were arrested for blocking access to the Vermont Yankee plant. They claimed their actions were justified under the “necessity defense” — that they were trying to prevent a larger harm.

The Vermont Supreme Court said no.

The Court laid out four conditions that must be met to justify breaking the law in protest:

The emergency must arise without the defendant’s fault.
The danger must be clear and imminent, not speculative.
There must be no legal alternative.
The harm caused by the illegal act must be less than the harm avoided.

The protestors failed every point. There was no immediate danger. There were legal avenues available. And the harm they caused wasn’t justified. The Court upheld their convictions.

The message? Being scared or offended does not grant you license to break the law.

Who Gets to Declare a Protest Unlawful?

In Vermont, a Superior Court judge, sheriff, deputy sheriff, or constable can formally declare an assembly unlawful under 13 V.S.A. § 901 and order it dispersed in the name of the state.

All law enforcement officers can take immediate action when individual crimes occur. Charges like disorderly conduct, obstruction of traffic, assault, or destruction of property do not require a formal dispersal order.

If the law is being broken, they can enforce it.

Punch Up — Not Down

If you’re blocking roads and intimidating strangers because you’re angry, you’re not protesting the government — you’re just harassing the people who live under it.

And that’s not justice. That’s bullying.

The hierarchy of accountability is simple:

Protest the lawmakers — they write the laws.
If you must, confront the enforcers — they carry them out.
But do not target private citizens who had no say in the matter. And do not damage private property just to get attention.

Because the rule for protest is the same as for comedy: