Right of Assembly
Congress shall make no law...abridging...the right of the people peaceably to assemble....
There has been some debate as to whether “the right of the people peaceably to assemble, and to petition the government for a redress of grievances” in the First Amendment recognizes a unitary right to assemble for the purpose of petitioning the government, or whether it establishes both an unencumbered right of assembly and a separate right of petition. Though the issue continues to be disputed, the text of the First Amendment and the corresponding debates over the Bill of Rights suggest that the Framers understood assembly to encompass more than petition. There are two reasons supporting this viewpoint. First, while punctuation at the Framing did not carry the same significance as it does today, the comma after “assemble” appears to be residual from proposed language for the Bill of Rights forwarded by the several states. Those drafts included separate clauses for assembly and petition.
A second reason against construing the right of assembly as limited to the purpose of petition comes from a debate between Theodore Sedgwick of Massachusetts and John Page of Virginia during the House of Representatives’ consideration of the language that would become the Bill of Rights. Sedgwick criticized the proposed right of assembly as redundant in light of the freedom of speech: “If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutiae.” Page countered Sedgwick’s proposal with a pointed reference to the trial of William Penn to illustrate the importance of the right of assembly. Penn had been arrested and tried in London for unlawful assembly following his preaching on the streets— an act of religious worship that had nothing to do with petitioning the government. After Page spoke, the House defeated Sedgwick’s motion to strike assembly from the draft amendment by a “considerable majority.”
The first groups to rely upon the freedom of assembly also construed it broadly. At the end of the eighteenth century, the Democratic-Republican Societies repeatedly invoked the right of assembly against Federalist challenges to their gatherings and activities. During the antebellum era, slaves and free blacks contested the denial of free assembly by Southern legislatures. Meanwhile, female abolitionists and suffragists in the North organized and asserted the right of assembly in conjunction with their political conventions.
In Presser v. Illinois (1886), the Supreme Court narrowly construed the text of the First Amendment by suggesting that the right of assembly was limited to the purposes of petitioning for a redress of grievances. Presser is the only time that the Court has expressly limited the right of assembly in this way, and the Court has since indirectly contradicted the view that assembly and petition compose one right.
While some commentators accepted the Supreme Court’s narrow interpretation in Presser, state courts interpreting parallel state constitutional provisions of assembly articulated far broader protections that extended to religious groups and social activities. This more expansive sense of assembly was also asserted by the women’s movement and labor protesters during the Progressive Era.
Nineteenth-century legal commentators applied the right of assembly to a broad array of gatherings. In 1867, a treatise by John Alexander Jameson referred to “wholly unofficial” gatherings and “spontaneous assemblies” that were protected by the right of peaceable assembly, a “common and most invaluable provision of our constitutions, State and Federal.” These assemblies were “at once the effects and the causes of social life and activity, doing for the state what the waves do for the sea: they prevent stagnation, the precursor of decay and death.” Albert Wright’s 1883 Exposition of the Constitution of the United States observed that under the right of assembly, “any number of people may come together in any sort of societies, religious, social or political, or even in treasonous conspiracies, and, so long as they behave themselves and do not hurt anybody or make any great disturbance, they may express themselves in public meetings by speeches and resolutions as they choose.”
The Supreme Court made the federal right of assembly applicable to the states in De Jonge v. Oregon (1937). After speaking before a group of 150 people at a meeting that occurred under the auspices of the Communist Party, Dirk De Jonge had been convicted under Oregon’s criminal syndicalism statute, which prohibited “the organization of a society or assemblage” that “advocate[d] crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” A unanimous Supreme Court reversed the conviction. Chief Justice Charles Evans Hughes underscored the significance of applying the right of assembly to state action by observing that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
In 1939, assembly joined religion, speech, and press as one of the “Four Freedoms” celebrated at the New York World’s Fair. Speeches, newspaper editorials, and other tributes surrounding the Fair heralded the singular importance of assembly to American freedom. When later that year the Supreme Court issued its decision in Hague v. Committee for Industrial Organization (an assembly case that first recognized the concept of the public forum, which now plays a central role in free speech doctrine), the editors of the New York Times pronounced that “with the right of assembly reasserted, all ‘four freedoms’ of [the] Constitution are well established.”
In 1941, festivities around the country marked the sesquicentennial anniversary of the Bill of Rights. In Washington, D.C.’s Post Square, organizers of a celebration displayed an over-sized copy of the Bill of Rights next to the four phrases: “Freedom of Speech, Freedom of Assembly, Freedom of Religion, Freedom of the Press.” The Sesquicentennial Committee, with President Franklin D. Roosevelt as its chair, issued a proclamation describing the four freedoms as “the pillars which sustain the temple of liberty under law.” Days before the attack on Pearl Harbor, the President heralded the “immeasurable privileges” of the First Amendment and signed a proclamation for Bill of Rights Day against the backdrop of a mural listing the four freedoms. (Roosevelt’s 1941 State of the Union Address posited a different four freedoms. Rather than refer to the freedoms of speech, religion, assembly, and press that had formed the centerpiece of the World’s Fair, Roosevelt’s “Four Freedoms Speech” called for freedom of speech and expression, freedom of religion, freedom from want, and freedom from fear. The new formulation—absent assembly—quickly overtook the old.
In Thomas v. Collins (1945), the Supreme Court emphasized that because of the “preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment,” only “the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Justice Wiley Blount Rutledge’s opinion noted that the right of assembly guarded “not solely religious or political” causes but also “secular causes,” great and small. Rutledge also observed that the rights of the speaker and the audience were “necessarily correlative.”
The attention to assembly in the 1940s quickly receded. Although the right remained important in several decisions overturning convictions of African Americans who participated in peaceful civil rights demonstrations, courts had largely ignored the right by the close of the Civil Rights Era. The Supreme Court has not addressed a right of assembly claim in thirty years.
At least part of the reason for the neglect of assembly has been the Court’s recognition of a non-textual right of association, beginning in NAACP v. Alabama (1958). Justice John M. Harlan’s opinion for a unanimous Court cited De Jonge and Thomas for the principle that: “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” Based on these precedents, Harlan could have resolved the case under the freedom of assembly. But he instead shifted away from assembly, finding it “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” The members of the petitioner NAACP had a “constitutionally protected right of association” that meant they could “pursue their lawful private interests privately” and “associate freely with others in doing so.”
Later, the Court split the right of association into two component parts in Roberts v. United States Jaycees (1984). Justice William J. Brennan’s majority opinion asserted that previous decisions had identified two separate constitutional sources for the right of association. One line of decisions protected “intimate association” as “a fundamental element of personal liberty.” Another set of decisions guarded “expressive association,” which was “a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.” Expressive association to pursue “a wide variety of political, social, economic, educational, religious, and cultural ends” was “implicit in the right to engage in activities protected by the First Amendment.”
Subsequent decisions have suggested that few groups outside of the family qualify for protection under the right of intimate association. Other decisions have revealed a deep incoherence in the doctrine of expressive association that has led to less robust protections than those envisioned by the right of assembly. For example, in Christian Legal Society v. Martinez (2010), the Court concluded that a Christian group’s right of association claim “merged” with the group’s free speech claim. In other words, the Court found no value in association apart from speech.
M. Glenn Abernathy, The Right of Assembly and Association (2d ed. 1981, 1961)
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998)
Ashutosh Bhagwat, Associational Speech, 120 Yale L.J. 978 (2011)
Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. Rev. 543 (2009)
Richard A. Epstein, Forgotten No More, A Review of Liberty's Refuge: The Forgotten Freedom of Assembly, 13 Engage (March 2012)
John D. Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly (2012)
John D. Inazu, The Unsettling "Well-Settled" Law of Freedom of Association, 43 Conn. L. Rev. 149 (2010)
Linda J. Lumsden, Rampant Women: Suffragists and the Right of Assembly (1997)
Jason Mazzone, Freedom's Associations, 77 Wash. L. Rev. 639 (2002)
Michael W. McConnell, Freedom By Association, First Things (August/September 2012)
United States v. Cruikshank, 92 U.S. 542 (1876)
Presser v. Illinois, 116 U.S. 252, 267 (1886)
De Jonge v. Oregon, 299 U.S. 353 (1937)
Herndon v. Lowry, 301 U.S. 242 (1937)
Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)
Thomas v. Collins, 323 U.S. 516 (1945)
NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)