What to know about protesting in New Mexico: A conversation with the ACLU

NEW MEXICO (KRQE) – New Mexico is no stranger to protests; in fact, hundreds, if not thousands, have taken place in the state throughout time. We’ve seen people share their opinions on elected officials, historical and popular figures, women’s rights, workers’ rights, racial justice, and immigration, to give a few examples.

No matter how big or small, or what the topic is at the center, the right to protest is protected by the United States Constitution under the First Amendment and New Mexico’s Bill of Rights. And while there is no guidance on specific ways to protest, some actions can get you in trouble with the law.

KRQE spoke with Kristen Love, the senior civil liberties attorney with the ACLU of New Mexico, about what to know before attending or organizing a protest in the Land of Enchantment.

**Editor’s note: Some of KRQE’s questions and Love’s responses below have been shortened or summarized for clarity purposes.

Is there anything specific about protesting in New Mexico that people should know about?

Love: “So, our state Bill of Rights has been interpreted to protect more speech than the federal First Amendment, but we don’t have much case law describing what exactly that means, that more extensive protection. And so here in New Mexico, just as any place in the U.S., people have their rights to protest are most protected on public property and quintessential public forums, like parks and sidewalks, and streets, and then also in places like Civic Plaza in Albuquerque, which is near government buildings.”

What is protected speech?

Love: “People should know that most speech is protected. So, speech where people make something like a true threat, where they say something very directly threatening, is not protected speech. So don’t engage in that if you don’t want to face the consequences of doing so.”

Counterprotestors also have protected speech.

Love: “So, just recognizing our First Amendment protects speech even if it’s deeply offensive or something that we can’t bear to hear; that also protects our own speech. So it’s critical that counterprotesters and protesters all have space to make their opinions heard.”

Can the government place restrictions on protests?

Love: “The government can impose what are called time, place, and manner restrictions on protests, and the ACLU has been involved in cases that decide what the parameters of those restrictions can be for them to be still constitutional. But what that means is, if you’re planning to make a lot of noise during a protest, so use amplification devices; at times the government can restrict the noise that you’re making, especially if you’re trying to do it really late at night or something like that.”

What does the law say about protests in the streets?

Love: “So, cities and towns have varying ordinances that govern how people can occupy streets. The ACLU’s position is that people, in response to breaking news, can protest without a permit. So if something is coming out of breaking news, and people are mobilizing in response to breaking news, they won’t have time to obtain a permit and to make their voices heard in the way that they want to in a timely manner.”

Love: “Generally speaking, our recommendation is that if people are in a city or town that requires a permit, if they’re not responding to something that’s breaking news, that they should go through the permit process.”

Love said the ACLU has previously and could intervene in the permit process if it appears the price or the time to obtain a permit is burdensome.

Can law enforcement shut down or intervene in a protest?

Love: “Generally speaking, no. Because protests, especially in quintessential public forums, should never be disrupted or prevented by police.”

Engaging in civil disobedience

Love: “But sometimes in our history, and now, you know, but also in the past, people have engaged in what’s called civil disobedience, which is not a constitutionally protected form of protest. So this could be things like blocking the entrance to a government building, or chaining yourself to a government building. Those are actions that would expose anybody who’s engaged in them to criminal prosecution for committing a crime. But sometimes people decide to engage in those actions because they want to send a message that their exposure to prosecution is the message.”

Committing property damage

Love: “So property damage is a crime, and anytime people are committing a crime, even if they’re also engaged in a constitutionally protected activity, or constitutionally protected speech, the police can arrest somebody for committing a felony or certain kinds of misdemeanors in their presence. We have a misdemeanor arrest law that limits the arrests that police can make in New Mexico.”

Identifying yourself when asked by law enforcement

Love: “In New Mexico, we have a law that requires people to give their identity if a law enforcement officer believes that they have committed a crime and ask them for their name.”

Refusing law enforcement orders

Love: “We always urge people, to use, to fight in the courts, not in the streets. So, if somebody is being told to do something by a police officer that seems like it isn’t right, to, for your own safety, it’s a good idea to consider the circumstances and decide what’s best for you. But, I would encourage people to follow police commands. And then if you believe those police commands were unlawful, to come to the ACLU.”

Can you record police interactions in New Mexico?

Love: “Under a law that governs New Mexico, we’re allowed to not only photograph police doing their jobs outside, but also video record police or anything in plain view, and plain view means I can’t use a lens that allows me to see inside a building; that hasn’t been litigated to the point of protection yet.”

Love recommended considering safety when filming and also gauging if the person being arrested wants to be filmed.

Love: “Also, we recommend not posting a video on social media until you’ve had a chance to connect with the person who is maybe being arrested while you were taking a video, because they may not want that video online and widely spread.”

What to do if you believe your rights have been violated?

The ACLU recommends that people write down everything they remember, including the time and date, the law enforcement officer’s badge, name, and patrol car numbers, and the agency they work for. Also, document contact information for witnesses and take photographs of any injuries.

Once you have all of this information, you can file a written complaint with the law enforcement agency’s internal affairs division or civilian complaint board.

Love also encouraged individuals to submit a legal complaint on ACLU New Mexico’s website for review by its legal team.

The ACLU of New Mexico created a webpage dedicated to protesting rights; to view it, click here.

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