Can protesting in the US be ‘illegal’? Trump’s vague warning raises constitutional questions
By Andy Rose, CNN
(CNN) — Among the hundreds of social media posts President Donald Trump has put out since Inauguration Day, two words have gotten special attention: “illegal protests.”
“All Federal Funding will STOP for any College, School, or University that allows illegal protests,” he wrote in a March 4 Truth Social post. “Agitators will be imprisoned/or permanently sent back to the country from which they came.”
The nation’s new education secretary this week further parsed the administration’s message about protests on American campuses: “This is not a freedom of speech issue,” Linda McMahon told CNBC on Tuesday. “This is a safety and civil rights issue.”
As with other First Amendment guarantees, judges have for decades ruled that the right to protest is not unlimited.
Trump’s defenders acknowledge it’s not entirely clear how he intends to define “illegal protest.” And the White House has not responded to CNN’s requests for specifics on what protests it would classify as illegal.
The ambiguity of the president’s warning could pave the way for lawsuits. It also could be damaging, critics say, if it has the effect of stifling freedom of speech, among the nation’s most fundamental and heralded rights.
“I think such a broad threat is going to have a chilling effect on protest and protesters,” said Gloria J. Browne-Marshall, professor of constitutional law at John Jay College of Criminal Justice in New York and author of the forthcoming book, “A Protest History of the United States.”
Here’s what to know about the right to protest in the United States:
A ‘fragile’ protection across US history
Protest is a foundational part of the story of the United States, predating the Constitution, when disguised colonists protested taxes by dumping tea into Boston Harbor.
The First Amendment is unique within the Bill of Rights, protecting not just one but five personal liberties: freedom of religion, freedom of speech, freedom of the press, freedom “peaceably to assemble” and freedom to complain to the government.
Protesting touches on several of these freedoms. But like the Declaration of Independence’s promise that “all men are created equal,” the First Amendment’s guarantees have not always been evenly applied.
“The right to protest as a manifestation of the rights of free speech and peaceable assembly is a fragile thing, and I think it always has been a fragile thing,” said Gregory Magarian, a professor of law at Washington University Law School in St. Louis.
President Abraham Lincoln, for instance, suspended habeas corpus protections for “disloyal persons” during the Civil War. The Sedition Act of 1918 prohibited “disloyal, profane, scurrilous, or abusive language” about the US government and military during World War I. Kentucky coal miners organizing for better working conditions were violently suppressed in 1931 by local law enforcement and private security. And civil rights demonstrators – including a future congressman – were savagely beaten in 1965 by state troopers and deputized citizens in Selma, Alabama.
“As Martin Luther King so brilliantly put it, we have to protest for the right to protest,” Browne-Marshall said.
What it takes to legally stifle a protest
But while courts have found law enforcement officers can shut down a protest that has turned violent or destructive, judges have been very reluctant to prevent even the most broadly offensive demonstrations before they take place.
“There are limits on the right of peaceable assembly, but it’s a strong constitutional protection,” Magarian said. “The idea of an ‘illegal protest’ is really legally incoherent.”
In 1977, the US Supreme Court overturned a state court ruling that would have prohibited neo-Nazis wearing swastikas from marching in Skokie, Illinois, home to a large number of Holocaust survivors. The American Civil Liberties Union defended the neo-Nazi group, and a 5-4 majority of the court ruled, “If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards.”
Nearly a half-century later, a neo-Nazi protest in Columbus, Ohio, drew loud complaints from residents and public officials with claims the group deployed pepper spray, but the police ultimately announced that no charges were filed.
“The Constitution protects First Amendment activity, no matter how hateful,” said Columbus Division of Police Chief Elaine R. Bryant.
Protests also can go beyond the well-known pictures of marchers with signs holding bullhorns, Browne-Marshall said. “Protest could be anything that requires standing up to people,” she said. “It could be Rosa Parks sitting down. It could be (Colin) Kaepernick taking a knee.”
Trump in his first term expressed animus against protesters, particularly when social justice demonstrations arrived across the street from the White House gates. Trump suggested opening fire on protesters in Lafayette Park, former Defense Secretary Mark Esper said.
“Can’t you just shoot them? Just shoot them in the legs or something?” Trump reportedly asked in June 2020, according to Esper.
Trump has denied making those statements, and protesters were cleared from the square with “less-lethal munitions.” The president fired Esper via tweet shortly after losing the 2020 presidential election and revoked Esper’s security detail last month.
Trump’s 2025 statement referring to protest “agitators” sounded familiar to Magarian.
“Historically, ‘agitator’ tends to be a word that governments and other critics of protest use to try to paint political dissenters as dangerous in some way,” he said. “It just deepens my sense from that tweet that Trump is essentially declaring war on political dissent, or at least on political dissent that he doesn’t like.”
Protester’s arrest ‘first of many,’ Trump says
While a blanket warning about “illegal protests” is unusual coming from a president, Trump’s statement is vague enough that it may not reflect an attempt to redefine the First Amendment, said Josh Blackman, constitutional law professor at the South Texas College of Law in Houston.
“A lot of this is sort of, as is often with Trump, untested,” Blackman said. “We don’t exactly know how this will shake out.”
Days after Trump’s online warning about “illegal protests,” for example, his Department of Education informed 60 colleges and universities they were under investigation “relating to antisemitic harassment and discrimination.”
Separately, both Columbia and Harvard universities recently settled civil lawsuits filed by students alleging the way they handled pro-Palestinian protests on campus failed to protect Jewish students from discrimination following the October 7, 2023, Hamas terror attacks and Israel’s military response in Gaza.
“Now, I think the federal government can use those court cases as the basis to withhold funding,” said Blackman. “I think a lot of schools thought last year there was impunity – they didn’t have any consequences – but now they’re seeing that there might be consequences.”
Meanwhile, the president’s threat to deport what he calls “agitators” is being tested in court, with the government’s attempt to deport Columbia graduate and pro-Gaza protest organizer Mahmoud Khalil put on hold by a federal judge.
“This is the first arrest of many to come,” Trump posted Monday of Khalil’s case.
The threatened deportation of Khalil, a legal permanent US resident, was due to “activities aligned to Hamas,” the Department of Homeland Security said on X, but federal authorities have not charged him with a crime.
US Secretary of State Marco Rubio this week defended efforts to revoke Khalil’s green card, as well as a policy to revoke student visas from alleged Hamas supporters.
“This is not about free speech. This is about people that don’t have a right to be in the United States to begin with. No one has a right to student visa. No one has a right to a green card, by the way,” Rubio said Wednesday.
“It’s clear that the Trump administration is selectively punishing Mr. Khalil for expressing views that aren’t MAGA-approved – which is a frightening escalation,” wrote New York Civil Liberties Union Executive Director Donna Lieberman, referring to Trump’s campaign slogan.
“Political speech,” she went on, “should never be a basis of punishment.”
Protests not just under threat at colleges
The increasing commitment to crack down on protests doesn’t just appear directed at ivory towers. After Democratic Rep. Al Green repeatedly interrupted Trump’s joint address last week to Congress, he was thrown out of the chamber and censured by House Republicans and a few in his own party.
The conservative House Freedom Caucus then called for Green to be stripped of his committee assignments, potentially taking away a key bully pulpit and vehicle for influencing legislation.
“He needs real consequences to demonstrate that no one gets to disrupt the People’s business in lame attempts to derail President Trump’s agenda,” said GOP Rep. Andy Harris of Maryland. Some Republicans also have expressed interest in payback for Democrats removing Republicans from committees in the recent past.
Defending unpopular speech, by definition, rarely gets broad support across political viewpoints. Left-wing groups in recent years have physically blocked or shouted down conservative speakers on college campuses to the point that their scheduled speeches were canceled.
But Americans are still committed to the right to protest, at least in a general sense: 84% of people in the US agreed “the right of the people to assemble peacefully” is very or extremely important, a poll conducted by the Associated Press-NORC Center for Public Affairs Research found nearly a year ago.
Steven Levitsky, professor of government at Harvard University, hopes the disorienting experience of officials’ commitment to free speech depending on who is in power will encourage people to rally in defense of the First Amendment.
“There’s been a tendency on both sides of the political spectrum in recent decades to devalue speech on the other side, and I think many, many Americans are coming to the realization that that’s a really bad idea,” said Levitsky.
“They’re coming back to the notion that, yeah, we really need to protect all speech or we’re going to lose it.”
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