LANSING, Mich. (Michigan News Source) – Michigan Democratic Attorney General Dana Nessel sent out a letter to law enforcement officials on Monday which she prepared “in anticipation that 2025 will be a year that sees an increased amount of protest and picketing behavior by Michigan residents” as if anticipating protests aren’t just probable but imminent.
The letter says that she is giving law enforcement “legal guidance on the issues that typically arise when constitutionally protected activity and criminal behavior arise in close proximity.”
The legal guidance appears to be tailored to prepare for a second term of Donald J. Trump as president. While his policies could spark protests across different issues, the unspoken implication in the memo can be seen as a focus on anticipated protests over Trump’s deportation plans for illegal immigrants.
Nessel send out the 4-page letter to law enforcement, along with a 27-page Memorandum and an accompanying video on the handling of protests and picketing. In her video, she says the letters were sent out to address the state and federal laws on protests and picketing and how they relate to the First Amendment and the Constitution. She warned that “citizen protests are likely to play a large part of our national discourse.”
First Amendment primer or protest playbook?
The letter, issued to law enforcement statewide, is pitched as a thoughtful dive into the interplay between constitutionally protected protests and criminal behavior and how law enforcement should balance the two issues. In the documents, Nessel emphasizes the need for officers to walk a delicate line – upholding rights while maintaining order.
Nessel says in her video, “The right to free speech enjoyed by all Americans is, in certain circumstances, regulated by state and federal law” and adds that it’s the role of government to “secure public safety, orderly function of public and private services and the privacy and residential rights of individuals in and out of public life.”
Nessel’s Memo contains a list of criminal offenses that are commonly seen in protest/picketing including: disturbing the peace; disorderly conduct; unlawful assembly; blocking traffic; trespassing or destroying property; threatening or committing violence; resisting or obstructing law enforcement and conspiracy.
In the Memo, there are also specific mentions by the AG of hot zones where dissenters like to protest – and are likely do so once deportation activities commence including: private residences; public schools and universities; government facilities (courthouses, jails, police stations) and the Michigan State Capitol.
Memo maps neutrality with nuance amid protest guidelines.
The Memo emphasizes neutrality, insisting that restrictions must be applied uniformly, regardless of a protest’s political stance. However, its detailed scope – laden with legal jargon about noise ordinances, curfews, buffer zones, state and federal laws, and case-specific examples – also acknowledges that every situation is unique.
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The AG’s guidance also highlights Michigan’s patchwork of local ordinances, which could lead to inconsistent enforcement depending on the protest’s location – and, critics might argue, its underlying political ideology.
In the section discussing protesting and picketing at a person’s residence, the AG lists multiple pages of different interpretations of the issue in court and says that although Michigan has a statute that prohibits
residential picketing, she admits, if challenged, it may be found to be facially unconstitutional because it is content-based and arguably does not “meet the test for strict scrutiny.”
Strict scrutiny is the highest standard of judicial review used by courts in the United States to evaluate laws, policies, or government actions that may infringe on constitutional rights.
Protests and picketing at courthouses, jails, prisons and police stations.
The Migration Policy Institute’s analysis of 2019 U.S. Census Bureau data estimates that there are approximately 90,000 “undocumented” residents living in Michigan and news reports are already saying that illegal immigrants and the agencies and nonprofits who help them are bracing for “chaos.”
If Michiganders start protesting the deportation of illegal immigrants, chances are that they will most likely occur at courthouses, jails, prisons and police stations. In Nessel’s Memo on the topic, she says that the interiors of these places have traditionally been considered “nonpublic fora” (government-owned spaces that are not traditionally open to public expression or assembly) and that the Seventh Circuit has noted that the Constitution does not create a “right of access” to the inside of governmental buildings.
Nessel adds that jails built for security purposes are not open to the public. The same principles, she said, may apply to the outside of such facilities and she points out that the Supreme Court has said that not every sidewalk open to the public is necessarily a public forum. She concludes, “as with many of the locales discussed heron, the analysis largely turns on the idiosyncrasies of the location and the particular activity of the protesters there.”
What happened during President Trump’s first term?
President Trump’s first term was marked by widespread protests and even riots. Following the killing of George Floyd, Black Lives Matter and other protesters engaged in vandalism, theft, arson, and violence – including riots and murders – that far exceeded the protections of First Amendment rights.
Other protests during Trump’s presidency included the Women’s March (advocating for women’s rights, reproductive rights, racial equality, LGBTQ+ rights and other progressive causes); protests over anti- immigration policies like the travel ban; climate change protests; gun control protests and more.
With Trump’s return on the horizon, Michigan law enforcement may want to swap their coffee breaks for a crash course in patience. The new guidance from the Attorney General hints at what could be a recurring theme from Democrats starting soon – a constant outcry over Trump’s actions, much like the frequent uproars during his last stint in the White House.
But even armed with the AG’s guidance, the path ahead for law enforcement in Michigan will be no cakewalk. They will be expected to navigate a labyrinth of local, state, and federal laws on protests and picketing – all while brushing up on case law like seasoned legal scholars – but still taking every different situation into consideration amidst a tense situation. Navigating 2025’s protest landscape will require Michigan law enforcement to juggle constitutional rights, public safety, and political tensions – a balancing act that will be easier said than done.
On the same day that Nessel released the new picketing guidance, she also told reporters at her Lansing government office building that she will participate in her own protest and dissent if Trump’s policies are “promulgated in a way that they are violating the law or people’s constitutional rights” promising “I will defend the people of this state and I will take action.”
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