Almost nothing is more vital to our way of life than the exercise of our right to free speech, protected by the First Amendment of the United States Constitution. However, that right is not unlimited and it must yield to competing interests in certain cases. Given the uptick in demonstrations in the past year, we must ask whether blocking traffic on a public highway as part of a political protest is protected by the First Amendment as a form of symbolic speech.

Dr. Martin Luther King, Jr.’s march of 1965

Many people will recall Dr. Martin Luther King, Jr.’s march from Selma to Montgomery, Alabama in March of 1965, a march which reached up to 25,000 participants as it continued. In Williams v. Wallace (1965) 240 F.Supp. 100, Judge Frank Johnson stated “the law is clear that the right to petition one’s government for the redress of grievances may be exercised in large groups…and these rights may be exercised by marching, even along public highways.” A “reasonable use of the highways for the purpose of a pedestrian march is guaranteed…by the Constitution of the United States.” Judge Johnson went on to state that only 300 marchers were allowed to march on the U.S. Highway in question. He also clarified that the marching could not unreasonably interfere with others’ rights to use the highway and could not deprive others of “police protection.” As such, the right to march on a highway is not an unfettered right but one that has to be carefully balanced.

Assembly Bill (“AB”) 2742

Recently, Kate Sanchez, an assemblymember from Orange County, introduced Assembly Bill (“AB”) 2742, which would double penalties for protestors who willfully obstruct the flow of traffic on highways. Protestors could be fined up to $1,000 if AB 2742 becomes law. AB 2742, on its face, is concerned with protestors preventing emergency vehicles from traveling to the scene of an emergency. Ms. Sanchez was also quoted as worrying about the transportation of lifesaving organ donations and the ability of parents to pick their children up from school. These are some of the competing interests when protestors block public highways.

In the past year, countless demonstrations have shut down highways across the United States, especially in California. Many of these protests have been related to a political demand for a ceasefire in Gaza - as was the November 16, 2023 shutdown of the Bay Bridge which resulted in the San Francisco County District Attorney’s Office filing charges against 80 individuals for misdemeanor violations of failing to obey a lawful order from a uniformed police officer, false imprisonment, unlawful assembly, refusal to disperse at a riot and obstruction of a thoroughfare.

As lawmakers and law enforcement continue to balance the competing interests of those who use the highways for travel and those who seek to utilize it for political demonstrations, protestors are encouraged to seek legal counsel to evaluate their First Amendment rights.