The free assembly clause is one of the few constitutional liberties preceded by a modifier – “peaceably” – ensuring that violent upraising and rioting aren’t included in the right to gather. Students who gather freely every day, for everything from sports to loitering in the halls or in front of stores or in the mall, should understand the fundamental basis for the right to peaceably assembly.
The First Amendment says:
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.
Early Challenges
The right of assembly was first tested by the Supreme Court in 1876, in United States v. Cruikshank. The defendants in the case had been indicted under the Enforcement Act of 1870, which prohibited any act to “intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States”.
While the indictment could not be upheld, the court declared, “'The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.” (United States v. Cruikshank, 1876)
Ways of Assembling
The right to peaceably assemble preserves more than the right to march peacefully. It includes consideration of such things as:
- Curfews, loitering & freedom of association
- Protests & buffer zones
- Assembly on private property, and
- Funeral protests
Most notably, the right to gather together has been used to maximize the right to free speech in the expression of civil rights views, from the early suffrage movement, to Dr. Martin Luther King, Jr’s civil rights marches.
Early History of Freedom of Assembly
In the precedent setting 1937 Supreme Court case De Jonge v. State of Oregon, Dirk De Jonge had been convicted for teaching communist doctrine to a gathering of 300 people .The Court reversed his conviction, observing that "the right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."
In other words, said the court, you can’t deny the the right to assemble “ without violating those fundamental principles which lie at the base of all civil and political institutions." More profoundly, the court ruled that "the holding of meetings for peaceable political action cannot be proscribed."”
Peaceful Assembly Protection for All
“Peaceable” remains the operative word. The First Amendment protects peaceful, not violent, assembly, although there must be a "clear and present danger" or an "imminent incitement of lawlessness" in order for government to restrict assembly rights.
Generally, though, the Supreme Court maintains that it is imperative to protect the right to peaceful assembly, even for those with whose speech many may disagree, such as Ku Klux Klan (KKK) gatherings, which many perceive as hateful, ruling (in National Socialist Party v. Skokie, 1977) that "it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear."
Curfews
Curfews – limiting the hours that people can be out and about for various reasons – have been among the most common assembly rights challenges.
In City of Chicago v. Morales in 1999, the Supreme Court struck down a municipal code that criminalized loitering, which was defined as “to remain in any one place with no apparent purpose.” Though the law was enacted to fight gang activity, it improperly penalized a lot of harmless activity and granted police officers what some saw as an unhealthy amount of personal discretion in assessing which kinds of behavior they felt violated the ordinance.
In the same way, juvenile curfew laws have been challenged for limiting the rights of minors to meet and gather. Such ordinances have survived only because they exempt activities protected under the First Amendment. ( Schleifer v. City of Charlottesville, 1998.)
Expressive Association
Expressive association can refer to any type of gathering conducted in the interest of a common political, cultural or economic activism. To constitute “expressive association,” gatherings must be defined by common political, cultural or economic activism. Social gatherings that are intended for leisure and diversion do not qualify and may be regulated by the government for any rational purpose. For instance, in the 1989 case City of Dallas v. Stanglin, the Supreme Court upheld a local ordinance limiting use of dance halls to teens between ages 14 and 18.
Our founders knew that without including the right to gather freely in the First Amendment, citizens are unable to communicate information and ideas necessary to make informed decisions about their own governance. The right to “peaceably” assembly keeps citizens safe, and free.
Theresa Willingham - My goal, as a writer and photographer, is to create thought provoking and informative content that inspires community engagement, and ...
