The right to protest: the essentials

In France, no article of the Constitution proclaims “the right to demonstrate” in those words. It follows from freedom of expression: article 11 of the 1789 Declaration protects the free communication of thoughts and opinions, and article 10 says that no one may be disturbed for their opinions provided that their expression does not disturb the public order established by law.

The Constitutional Council has named this collective dimension: in its decision of 18 January 1995 it speaks of the “right to the collective expression of ideas and opinions”. On this basis, demonstrating is recognised as a freedom of constitutional value.

The European Convention on Human Rights guarantees freedom of peaceful assembly in its article 11. The International Covenant on Civil and Political Rights (article 21) and the Universal Declaration of Human Rights (article 20) also recognise the right to assemble peacefully.

These texts allow restrictions, but under strict conditions: they must be provided for by law and necessary, in a democratic society, for specific aims such as public safety, the prevention of disorder or the protection of the rights of others. In 2020 the UN Human Rights Committee detailed how to read this right in its General comment no. 37.

A public meeting takes place in an enclosed place: it is free in principle and needs no prior permission (law of 30 June 1881). A demonstration takes place on the public road, as a march, a parade or a gathering: it is subject to prior notification.

An unlawful assembly (attroupement) is a gathering on the public road likely to disturb public order. It is a legal qualification applied by the authority, which allows the gathering to be dispersed after two orders to disperse have had no effect. A peaceful demonstration is not, by nature, an unlawful assembly.

Since the Council of State’s Benjamin ruling (1933), one rule structures all administrative policing: freedom is the rule and police restriction the exception. The authority may only prohibit when necessary to preserve public order and when no less restrictive measure is enough.

In practice it is a balance: the authority must protect public order without emptying the freedom to demonstrate of its content, and its decisions can be challenged before a judge.

Practical rules (how to notify, what to do if a demonstration is banned, what organisers and participants risk) are covered in the following articles. Each country has its own regime: some require notification, others authorisation, and others protect this freedom very little.