The Scope of First Amendment Protection for Public Protest: Permits, Police Encounters, Recording Rights, and Arrest Procedures in 2026

Vera Eidelman, Senior Staff Attorney | ACLU

Vera Eidelman is a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, where she works on the rights to free speech and privacy in the digital age. Her work focuses on the free speech rights of protesters and young people, online speech, and genetic privacy. She has litigated and argued constitutional and privacy cases in trial and appellate courts at the state and federal levels, including before the United States Supreme Court, with a practice centered on protecting expression and privacy interests against government and private intrusion. Before joining the ACLU, she built an early career spanning economic policy and law, including roles at the Carnegie Endowment for International Peace and a federal clerkship.

• Education & Credentials

Eidelman earned a Bachelor of Arts in Economics and Sociology from Stanford University and a Juris Doctor from Yale Law School, where she graduated in 2015. During law school, she worked in Yale’s Media Freedom and Information Access (MFIA) Clinic for three semesters, interned with the Electronic Frontier Foundation, and was a member of Yale’s San Francisco Affirmative Litigation Project. She is admitted to the New York Bar.

• Recognition & Leadership

Eidelman was a William J. Brennan Fellow with the ACLU’s Speech, Privacy, and Technology Project before advancing to staff attorney and, subsequently, senior staff attorney.

• Professional Involvement

Eidelman is an active commentator and speaker on free speech and privacy. Her scholarship includes The First Amendment Case for Public Access to Secret Algorithms Used in Criminal Trials, 34 Ga. St. U. L. Rev. 915 (2018). She has authored numerous ACLU commentaries and op-eds, with bylines appearing in outlets including The Washington Post, CNN, USA Today, and Tech Policy Press, on subjects ranging from genetic privacy and DNA collection to protest rights, book bans, and online speech. She has appeared on the ACLU’s “At Liberty” podcast regarding Mahanoy Area School District v. B.L., and has served as a panelist and speaker for the Washington Legal Foundation and Center for Democracy & Technology, Yale Law School’s Floyd Abrams Institute, and the Federalist Society. She is an alumna of Yale Law School’s Information Society Project.

• Experience

Eidelman serves as a senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, having joined as a William J. Brennan Fellow and advanced through staff attorney to her current role. Before the ACLU, she clerked for the Hon. Beth Labson Freeman of the U.S. District Court for the Northern District of California, and earlier served as Managing Editor and Economist with the Carnegie Endowment for International Peace. Her litigation includes Dakota Rural Action v. Noem, a challenge to “riot boosting” laws; ACLU v. Clearview AI, a privacy challenge to nonconsensual faceprinting; and the defense of banned books in In re Gender Queer and A Court of Mist and Fury. She represented a racial justice protester in Mckesson v. Doe and a high school cheerleader in Mahanoy Area School District v. B.L., both before the Supreme Court, and has handled cases on social media editorial discretion, age verification, and the right to record police.

Andrew Tutt, Co-Chair | Trial Lawyers for Justice

Andrew Tutt co-chairs TL4J’s Nationwide Appellate & Supreme Court Practice. He is an accomplished Supreme Court and appellate advocate with a record of victories shaping civil rights enforcement, servicemember and veterans’ protections, appellate procedure, federal pleading standards, constitutional rights, and access to the courts. He has won major cases before the United States Supreme Court and has led appeals in every federal court of appeals, with appellate victories spanning the First Amendment, federal grant funding, prisoner and detainee rights, state sovereign immunity, administrative law, intellectual property, and complex federal statutes.

• Education & Credentials

Tutt earned his J.D. from Yale Law School and his B.S. from Duke University, where he triple-majored in Biomedical Engineering, Economics, and Mathematics. He is admitted to the bars of California, the District of Columbia, and New York, as well as the Supreme Court of the United States; the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, D.C., and Federal Circuits; and the U.S. District Court for the District of Columbia.

• Recognition & Leadership

Tutt co-chairs TL4J’s Nationwide Appellate & Supreme Court Practice. He has been recognized by Chambers USA in Nationwide Appellate Law, where clients praised his “extraordinary strategic instincts.” He has been named a Rising Star in appellate litigation by The Legal 500, a Leading Litigator in America for Appellate and Supreme Court work by Lawdragon, an Appellate Rising Star by Law360, a D.C. Rising Star and Litigation Trailblazer by The National Law Journal, a Pro Bono Innovator by Bloomberg Law, a Young Lawyer of the Year, Litigation honoree by The American Lawyer Industry Awards, and a Best Lawyers honoree in Appellate Practice.

• Professional Involvement

Tutt is an active legal scholar and speaker. His publications include An FDA for Algorithms, 69 Admin. L. Rev. 83 (2017), written during his service as an Attorney-Adviser in the Department of Justice’s Office of Legal Counsel and developed from the 2016 “Unlocking the Black Box” conference at Yale Law School; Interpretation Step Zero: A Limit on Methodology as “Law,” 122 Yale L.J. 2055 (2013); A Fragment on Legal Innovation, 62 Buff. L. Rev. 1001 (2014); and Legal Agreement, 48 Akron L. Rev. 2 (2015). He has been affiliated with Yale Law School’s Information Society Project. He has also spoken at Federalist Society programs, including the panel “The Administrative State, Its Supporters and Its Discontents” at the 2023 National Lawyers Convention, alongside Steven G. Bradbury, Emily Bremer, Ronald M. Levin, and Judge Steven J. Menashi, a session subsequently released as a Federalist Society video and podcast.

• Experience

Tutt represents clients before the Supreme Court, federal courts of appeals, state appellate courts, and trial courts, and works closely with trial teams on dispositive motions, extraordinary writs, issue preservation, post-trial motions, and verdict defense. His Supreme Court victories have protected civil rights remedies, expanded legal protections for service members and veterans, clarified rules for preserving issues on appeal, and reinforced federal pleading standards affecting access to federal court. He established First Amendment protections for filming and livestreaming police officers in the Fourth and Tenth Circuits, and in a recent actual innocence case his work led the Department of Justice to announce a nationwide policy protecting access to the courts for people asserting actual innocence. Before joining TL4J, Tutt was Counsel in Arnold & Porter’s Appellate & Supreme Court practice. He previously served in the Office of Legal Counsel at the U.S. Department of Justice and clerked for Judge Cornelia T.L. Pillard on the U.S. Court of Appeals for the D.C. Circuit.

Virginia McCalmont, Partner | Forsgren Fisher LLP

Virginia (“Ginny”) McCalmont is a partner at Forsgren Fisher McCalmont DeMarea Tysver LLP, where her practice focuses on complex litigation, appeals, and internal investigations. Her work on high-stakes civil rights matters has drawn national and international attention. She was recently part of a team that secured a preliminary injunction protecting Minnesota residents who were unfairly targeted by federal agents while observing and protesting Operation Metro Surge — an injunction later stayed by the U.S. Court of Appeals for the Eighth Circuit and dissolved after Operation Metro Surge ended.

• Education & Credentials

McCalmont earned her J.D. from Yale Law School, where she served as an editor of the Yale Law Journal. She received her undergraduate degree from the University of Iowa, graduating with highest distinction and Phi Beta Kappa honors.

• Recognition & Leadership

McCalmont has twice been recognized as an Attorney of the Year by Minnesota Lawyer. As an undergraduate she was elected to Phi Beta Kappa and graduated with highest distinction, and during law school she served as an editor of the Yale Law Journal.

• Professional Involvement

McCalmont is a member of the Minnesota State Bar Association, the Hennepin County Bar Association, the 8th Circuit Bar Association, the Federal Bar Association, and Minnesota Women Lawyers, and she serves on the boards of Minnesota Women Lawyers and The Fund for Mid-Minnesota Legal Aid, as an investigator for the Fourth Judicial District Ethics Committee, and on the University of Iowa Political Science Alumni Advisory Board. She maintains an active speaking and teaching practice, presenting and moderating for bar associations, law schools, and appellate practice programs on topics such as appellate issue preservation, oral advocacy, and attorney-client privilege. Her published writing has appeared in With Equal Right, Attorney at Law Magazine, Law.com, and Federal Bar Association and Eighth Circuit Bar Association newsletters.

• Experience

McCalmont is a partner at Forsgren Fisher McCalmont DeMarea Tysver LLP, where her practice focuses on complex litigation, appeals, and internal investigations, including high-stakes civil rights matters. She was recently part of a team that secured a preliminary injunction protecting Minnesota residents targeted by federal agents while observing and protesting Operation Metro Surge. Before entering private practice, she clerked for the Honorable Diana E. Murphy of the U.S. Court of Appeals for the Eighth Circuit and the Honorable Janet C. Hall of the U.S. District Court for the District of Connecticut.

Seth Stern, Chief | Freedom of the Press Foundation

Seth Stern is the Chief of Advocacy at Freedom of the Press Foundation (FPF), where he and the advocacy team collaborate with a broad range of partners — from independent bloggers and incarcerated journalists to major national news outlets and civil liberties organizations — to promote laws and policies that allow public-interest journalism to thrive. Before joining FPF, he practiced media and First Amendment law for 13 years at the Chicago firm Funkhouser Vegosen Liebman & Dunn (FVLD), where he remains Of Counsel. A former newspaper reporter and editor, he is a prolific writer and commentator on press freedom whose work has appeared in The Guardian, The Intercept, Rolling Stone, and Columbia Journalism Review, as well as local newspapers in his hometown of Chicago and around the country.

• Education & Credentials

Stern earned a Bachelor of Arts in Journalism from Emory University and a Juris Doctor, magna cum laude, from DePaul University College of Law in 2009, where he served as an Associate Editor of the DePaul Law Review. He is admitted to practice before the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, and the U.S. District Court for the Northern District of Illinois, and is a licensed Illinois attorney..

• Recognition & Leadership

Stern serves as Chief of Advocacy at Freedom of the Press Foundation and holds leadership roles in two bar committees, chairing the Chicago Bar Association’s Media & Entertainment Law Committee and the American Bar Association Tort Trial and Insurance Practice Section (TIPS) Media, Privacy and Advertising Law Committee. His advocacy and commentary have been cited directly by federal lawmakers, including U.S. Senator Dick Durbin in support of the PRESS Act.

• Professional Involvement

Stern is active in professional and bar organizations and in public advocacy. He chairs the Chicago Bar Association’s Media & Entertainment Law Committee, having previously served as its Vice-Chair and Co-Chair and chairs the ABA TIPS Media, Privacy and Advertising Law Committee. He remains Of Counsel to FVLD. He maintains an extensive writing and speaking practice, with bylines in The Guardian, The Intercept, Rolling Stone, Columbia Journalism Review, Slate, The Daily Beast, Lawfare, and the Chicago Sun-Times, addressing topics including the PRESS Act federal shield law, the Espionage Act and the Julian Assange prosecution, FOIA and government secrecy, prior restraint, and newsroom raids. He speaks frequently in CLE programs, webinars, panels, and broadcast and podcast appearances, including NPR’s 1A, and authored an open letter to the Attorney General urging that the charges against Julian Assange be dropped, later signed by more than 35 law professors.

• Experience

Stern is the Chief of Advocacy at Freedom of the Press Foundation, which he joined as Director of Advocacy in November 2022. Before law school he worked as a reporter and editor for newspapers in the Chicago and Atlanta areas and in Cape Town, South Africa. From 2009 to 2022 he practiced media and First Amendment law at FVLD in Chicago, where he defended defamation and invasion-of-privacy claims, litigated for access to court records and proceedings, and handled employment, commercial, and FINRA arbitration matters; he also helped fight subpoenas issued to journalist Jim DeRogatis during the R. Kelly trials. At FPF, he and the advocacy team work on the national, international, and local levels to advance laws and policies supporting public-interest journalism. He continues to write and speak widely on press freedom and serves as Of Counsel to FVLD.

SESSION 1 – The Right to Protest and Its Lawful Limits | 1:00pm – 1:30pm

This session maps forum doctrine from traditional public forums to designated, limited, and nonpublic property, the standards governing police conduct during protests, and when prospective versus reactive litigation makes sense under Ford v. McKesson.

SESSION 2 – The Law of Permits and Its Constitutional Limits | 1:30pm – 2:00pm

This session covers the Forsyth County permit framework, spontaneous assembly doctrine, the wave of 103-plus anti-protest bills and critical infrastructure laws, and how Ford v. McKesson redefines organizer liability at the boundary of protected assembly.

BREAK | 2:00pm – 2:10pm

SESSION 3 – The Right to Record Police and Public Officials | 2:10pm – 2:40pm

This session addresses the circuit consensus on recording rights, qualified immunity gaps, the December 2025 DHS obstruction posture, Riley device-search limits, the compelled biometric and passcode disclosure split, and state two-party consent statutes for audio capture.

SESSION 4 – Rights and Remedies for Those Targeted for Documenting Protests | 2:40pm – 3:10pm

This session covers First, Fourth, and Fifth Amendment protections for documentation, the Privacy Protection Act, the Stored Communications Act, the Don Lemon and Georgia Fort prosecutions, and § 1983 claims after Gonzalez v. Trevino and Chiaverini.