The Right to Protest and The Tension Between Private Interests and State Interests

America is an alchemical creation. The principles upon which it was founded—liberty, sovereignty, self-rule—were drawn from deep wells of wisdom, meant to serve as the Great Work made manifest. The Republic, in its purest form, was intended as the Philosopher’s Stone, a transmutation of tyranny into self-governance, of darkness into light. But, as it is said, the road to hell is paved with good intentions.

The American Experiment did not work out exactly the way it was intended to. As in all alchemy, the process may be corrupted. For where there is gold, there is also lead; where there is light, there is shadow. And so, while some among the founders labored to bring forth a nation of wisdom, others saw in it an opportunity—a vessel through which control could be centralized, unseen by those who believed themselves free.

Thus, the American ideal exists in a constant tension—suspended between the State that seeks to consolidate its power and the citizens that seek liberty through self-governance.  

The Constitution, a masterpiece of sovereignty, was set forth to grant citizens dominion over their own lives, yet the institutions that rose beside it ensured that dominion remained always just beyond reach.  

Within this paradox—a people led to believe they shaped their own destiny while their path had already been laid before them—the battle between private interests of the citizens and interests of the State wages on. These interests are the point of focus here.  

Interest is an important legal concept fundamental to justice. In Merriam-Webster’s Dictionary of Law, interest, from the Latin “to be between, make a difference, concern,” is defined as, “a right, title, claim, or share in property.”¹ Thus, interest is a concern for a right or claim that one has.

In the American justice system, every action and event involving private citizens and the State includes legal interests. Consequently, there is a tension that underlies each dynamic in which private citizens and public figures interact. Each party has an interest they wish to enforce and preserve. This is particularly relevant to the constitutionally protected right to protest in the First Amendment.

Generally Recognized Right to Protest

The Dictionary of Law defines protest as:

1: a solemn declaration of opinion and usu. of disagreement.

2: the act of objecting or a gesture of disapproval; esp: a usu. organized public demonstration of disapproval.² 

Although there is no explicit right to “protest” in the Constitution, there is a right to peaceably assemble and petition the Government for a redress of grievances.

The First Amendment of the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.³

Private citizens have a constitutional right to “peaceably” gather and express their grievances without interference by the Government which involves organized public demonstration of disapproval—an implied right to protest. This right is not exclusive of other rights.

The Ninth Amendment states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.⁴  

In other words, a citizen’s interest in protesting something they disagree with, albeit in a manner consistent with the Constitution, is not controlled by the First Amendment alone. This amendment, however, explicitly protects this interest, reflecting the importance of protest in the democratic process of America. The fact that the Framers of the Constitution positioned the right to protest as the first in a series of important amendments should not be lost on the concerned citizen as this right is critical to liberty.   

The United Nations Universal Declaration of Human Rights echoes this recognition of the right to protest in its amendments, including citizen involvement in its own government:

Article 19: Everyone has the right to freedom of opinion and expression…

Article 20: Everyone has the right to freedom of peaceful assembly and association…

Article 21: Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.⁵

Thus, the right to protest is not unique to America but is a generally recognized right. Many nations throughout the world recognize the right to protest. And this right is related to the right to participate in governance. Although this right is not direct involvement in government administration, it nevertheless indirectly influences government action and policies, reflecting its intent—"to petition the Government for a redress of grievances.” The right to protest is critical to democracies in that it serves as a survey of collective dissatisfaction with a particular issue.

State Interest in Preserving and Enforcing Peaceful Protest

America is a Constitutional Republic by design, thus there exists within democratic processes an underlying expectation that the representatives elected by the citizens are there to uphold and preserve the individual rights of the citizens they serve. This expectation is founded not on political duty but the pursuit of justice.

This is reflected in the Preamble of the Constitution that states:

We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.⁶ 

Thus, the State has an interest in upholding this constitutional right because the government acts as a representative of the people. It has an interest, then, in listening to the grievances of the people when they assemble and petition it. This does not mean the government is required to do whatever the people want or demand based on the grievance per se; only that it preserves and enforces their right to assemble peaceably and petition it for a redress of grievances. The Constitution has other provisions for any changes to be made in response to grievances voiced by the citizens. The First Amendment merely covers the right to assemble peaceably and petition the Government.  

Expecting the protest per se to be the forum in which changes are made is impractical for another reason. There exist so many diverse groups of people within the greater American collective that enacting all demands would be impractical and likely to create more division and conflict. It is often the case that multiple groups antagonistic to the other protest simultaneously, each side in opposition to the other. In this case of polarization, granting the pleadings of all groups would further antagonize them, exacerbating an already volatile situation. One cannot please everyone all the time in a democracy because the diversity of interests is simply too divergent for unity. There is always a majority and minority—and often, even more divisions within these greater groupings.

Moreover, it is often the case that even in peaceful protests, the issues being protested are emotionally charged. Thus, like meetings in other contexts, the protest would be the proper place for presenting how one feels about an issue, but not where one makes a final determination on what to do with the issue. That would come later, after the protest. Thus, the reasonable expectation by the State in a protest by citizens is that they will assemble peaceably and “petition the Government for a redress of grievances.” Any conduct by the State, then, should be proportional to the conduct by civilians protesting.    

As the American government was designed to represent the people, not rule over them tyrannically, it is in the interest of the State to allow the people to protest peacefully and listen to their grievances when they do. To not do so, to interfere with this right is not only unconstitutional, but also bad governance because it ignores issues that could potentially become problematic if not resolved at the early stage. Preserving and enforcing the right to protest peaceably provides a civil way to solve problems before issues metastasize into something more dangerous and detrimental to the peace of the country.

Thus, the State interest in preserving and enforcing this right is critical to unity, justice, domestic tranquility, and the general welfare of the people.     

Private Interest in Peaceful Protest

The private interest in peaceful protest is central to the American ideal because it allows the citizenry to participate in self-governance—a core factor in this democratic Constitutional Republic. Importantly, it provides a civil outlet for expressing dissatisfaction with issues. By showing disapproval through organized peaceable public demonstrations, citizens assert sovereignty and active agency in how they are governed.     

The alternative is using force through aggression or violence to achieve changes. Although this is not uncommon in the human condition, and it certainly characterized the formulative years of America, the objective of the subsequent Constitution was to form a more perfect Union through civil means.

In other words, the intent was to progress beyond force and violence to a better way of enacting change within the American system. The Framers of the Constitution intended citizens to evolve by establishing ways to express discontent without resorting to violence.

Early writings by the Framers indicate they understood the tendency of human nature to irrational and violent behavior. This is inherent in the various constitutional rights of the citizens that serve as an implicit call to pursue more civilized means of governance. These rights recognized the dignity of the citizen and the potential to resolve issues in a more civilized way. Importantly, these rights clarified the government was purposed with securing the rights of citizens as it derived its powers from them.   

This recognition echoes in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…⁷      

But these rights are not self-executing. The power of a right lies in understanding it and engaging in conduct that is consistent with its intent without going too far and rendering it moot. In the American system, one is granted the liberty a constitutional right allows to the degree that one’s conduct aligns with the conduct that right describes. Engaging in conduct not permitted by that right subjects the citizen to sanctions or penalties should such conduct violate the law. Understanding a right is liberty and ignorance is not.   

The possibility that the intended purpose of the Constitution might be usurped by failure on the part of the citizen or State is reflected in a response by Benjamin Franklin to Elizabeth Willing Powel during the constitutional convention in 1787 where she asked:

"Well, Doctor, what have we got, a republic or a monarchy?" to which Franklin said, “A republic, if you can keep it.”⁸

The Constitution does not guarantee a more perfect Union—it provides an opportunity to achieve this. It does not guarantee happiness—it creates the space for the citizen to pursue this. The Constitution accounts for human nature whilst calling the parties bound by it to rise beyond the shadow of this nature to a higher state of existence. Importantly, the Constitution contains an inherent expectation that the citizens seeking its benefits understand it and use it responsibly. Freedom is not the ability to do something, but the ability to do something rightly and responsibly.

The right to protest is lawfully protected against governmental intrusion to the degree that the one exercising this right does so peaceably. Whereas non-peaceful protest is not constitutionally protected because it is not lawful. More to the point, non-peaceful protest contradicts the purpose of the Constitution, making it counteractive versus constructive.  

The Dictionary of Law defines peaceable as, “marked by freedom from dispute, strife, violence, or disorder.”⁹ Thus, peaceable assembly to protest would not involve fighting, violence, destruction, or disorder. Protest that does involve these would not be peaceable and thus would not be a constitutionally protected activity. This is still true no matter how much one may disagree with it. Until the constitutional definition of protest is changed, this is the operational framing within which citizens must work.   

Peaceful protest is consistent with the Preamble of the Constitution. It aligns with the intent “to form a more perfect Union,” “insure domestic tranquility,” “promote the general welfare,” and “secure the blessings of liberty.” Non-peaceful protest contributes to conflict and division, not unity. It produces unrest and turmoil versus tranquility. It does not promote the general welfare of civility nor secures liberty (unlawful conduct subjects one to civil or criminal consequences).  

Thus, the critical factor here is “peaceable” protest. This right within the First Amendment is conditioned on this factor. Anything other than peaceable protest upsets the balance underlying the State interest in maintaining the peace and the citizen interest in participating in their own governance through “petition[ing] the Government for a redress of grievances” through constitutionally permissible means—i.e., peaceable assembly.

Once a protest is no longer peaceful, the citizens lose protection of the law, and the State will be more likely to step in and interfere because now it takes on the role of keeper of the peace as opposed to hearer of grievances.

It does not matter in the moment whether the citizens claim their protest was peaceful if they are no longer engaging in conduct that is defined by law as peaceful. And when that happens, because the State is tasked with maintaining law and order, the citizens are subjected to enforcement action by the State, even if it is later determined to have been unreasonable or excessive.

In other words, once the citizen crosses the proverbial Rubicon into non-peaceful protest, whether directly or indirectly, they enter dangerous territory that will not likely end well.

This does not account for protests that began as peaceful but evolved into violence. Nor does this account for protests where most of the citizens protesting were acting peaceably but a few actors with malicious intent infiltrated the protest and instigated violence and disorder (sabotage of an otherwise lawful assembly). Nor does this account for State abuse of the right to protest or encroachment upon that right. These situations are too complex for this article and deserve further analysis at another time.

Nevertheless, the Framers did not deny or ignore the inevitable abuse of constitutional rights by the State. This recognition is reflected in the Declaration of Independence. In the same paragraph that spoke of equality of citizens and unalienable rights—Life, Liberty, and the pursuit of Happiness—and a government that derives its power from the citizens it governs, there was also mention of the right of the citizens to ensure the government preserves and enforces their unalienable rights:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.¹⁰

Although this was referring to the grievances of the American Colonies against Great Britain at that time, it nevertheless appeared to establish precedent for potential future remedy pertaining to American itself. Whether this piece of the Declaration of Independence was inferring the use of force in “throw[ing] off such [destructive] Government” or a more civil approach through constitutional and legal means is not a question to be examined here but left to further analysis by individuals with requisite experience and knowledge. Here, it suffices to say the Framers understood the tension between the private interest of citizens in securing liberty and the State interest in maintaining order and control, and they infused the Constitution with this recognition.  

Conclusion

In the American system of governance—a dynamic involving citizens and “[a] Government [that is] instituted among [the citizens], deriving [its] just powers from the consent of the governed”—understanding the interests of all parties to the constitutional “social contract” is critical for ensuring a more perfect Union. Protest provides a civil means of voicing grievances, but under the Constitution it must be done peaceably. Protest that is not peaceful is not permitted by law and will therefore subject the citizen to legal sanctions. The protest is not the forum in which to litigate the aggrieved issues, and willful engagement in dispute, strife, violence, or disorder during a protest places the citizen outside the protection of their First Amendment right to protest. Remember: although the State is supposed to preserve and enforce citizens’ rights, it also has an interest in maintaining the peace, and in times of civil unrest and disorder, it may prioritize the latter over the former. The law offers remedy for infringement of the private right to protest—but this happens in a civil context, not during a non-peaceful protest. It is not always easy to step back and address constitutional violations in a proper setting, especially when issues under protest are emotionally charged, but it reduces risk of further harm against citizens to withdraw and regroup in a legal context versus engaging in conduct in a protest that could lead to a worse outcome.     

References

¹ Merriam-Webster, Inc. (2016). Interest. In Merriam-Webster’s dictionary of law (p. 252).

² Id. at p. 390.

³ Id. at p. 628.

⁴ Id. at p. 629.

⁵ United Nations. (2025). Universal Declaration of Human Rights. https://www.un.org/en/about-us/universal-declaration-of-human-rights

⁶ Merriam-Webster, Inc. (2016). Constitution of the United States. In Merriam-Webster’s dictionary of law (p. 620).

⁷ National Archives. (2025). Declaration of Independence: A transcription. https://www.archives.gov/founding-docs/declaration-transcript

⁸ National Park Service. (2025). The Constitutional Convention: A day-by-day account for September 1787. https://www.nps.gov/articles/000/constitutionalconvention-september17.htm

⁹ Merriam-Webster, Inc. (2016). Peaceable. In Merriam-Webster’s dictionary of law (p. 353).

¹⁰ National Archives. (2025). Declaration of Independence: A transcription. https://www.archives.gov/founding-docs/declaration-transcript