Jonah Patel
The right to assemble peacefully is a fundamental freedom that has evolved over time and is now enshrined in the First Amendment of the US Constitution. This right was hard-won, with formative experiences including the trial of William Penn and William Mead in 1670, where they were arrested for preaching on the street, and the influence of the English Magna Carta of 1215. The First Amendment guarantees citizens the right to assemble and petition the government for a redress of grievances, a right that has been defended and expanded by the Supreme Court over the years, including in the landmark case De Jonge v. Oregon (1937). Before the Constitution, citizens' assemblies were often restricted or outlawed by lawmakers and police officers, and the right to assemble did not always apply equally to minority groups.
| Characteristics | Values |
|---|---|
| Citizens were not allowed to assemble before the constitution due to the absence of a formal right to assemble | |
| The right to assemble was not considered a distinct right | |
| The right to assemble was linked to the right to petition | The right to petition the government was established in the Magna Carta in 1215 |
| The right to assemble was not protected by law | |
| Minority groups were prosecuted under laws forbidding demonstrations deemed to threaten public safety | Socialists, communists, labor unions, and other minority groups were routinely prosecuted |
| Assemblies were considered dangerous to public order | English law allowed assemblies unless they endangered public safety |
| Assemblies were considered to have a "bad tendency" to produce disorder | |
| Citizens were jailed for unlawful assembly | William Penn and William Mead were arrested for preaching on the street |
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What You'll Learn
The right to assemble was not always constitutionally protected
The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. The First Amendment to the United States Constitution, which includes the right to assemble, was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights.
Before the First Amendment was adopted, the right to assemble was not constitutionally protected. The founding generation understood the value of freedom of assembly because they relied on it during their struggle for independence. The colonists used assemblies of people, such as the Sons of Liberty, to publicly protest British violations of their liberties. English law allowed these gatherings unless they endangered public safety, and royal authorities often labeled colonial protests as dangerous to public order. The colonists resisted British attempts to suppress their protests, sometimes with force.
The right to assemble did not always protect these assemblies, and courts and legislators, in the name of ensuring public safety, outlawed any gatherings with a "bad tendency" to produce disorder. Before the First Amendment, minority groups often discovered that the protections of the right to assemble did not apply equally to them. Socialists, communists, labor unions, and other so-called radical groups were prosecuted routinely under laws that forbade demonstrations deemed to threaten public safety.
The Supreme Court first considered questions related to the assembly clause in 1876 and reconsidered it in 1937. In 1958, the Supreme Court expanded the literal text of the Free Assembly Clause to protect an analogous but extra-textual Freedom of Association. The Court initially linked this right to the First Amendment rights of speech and assembly. Over time, however, the Court focused more on speech and expression, neglecting the assembly roots of the right of association.
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The First Amendment protects citizens' right to assemble
The First Amendment to the United States Constitution, adopted on December 15, 1791, protects citizens' right to assemble. It prevents Congress from making laws that would restrict individuals' freedom of assembly, freedom of speech, and freedom of the press. The text of the First Amendment states that "Congress shall make no law [...] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble".
The right to assemble has been crucial in protecting the ability of dissenting and unorthodox groups to express their views. These include Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups. The Supreme Court has affirmed that the right to assemble is inherent to a free government, and that the right has always been one of the attributes of citizenship.
The First Amendment's protection of assembly has been interpreted to include the right to freedom of association, which is not explicitly mentioned in the Constitution. This means that the government cannot restrict a group or association from assembling in public. The Supreme Court has also ruled that the First Amendment protects citizens from being compelled by the government to express certain speech.
The right to assemble has evolved over time, with the Supreme Court considering and re-considering the Assembly Clause in 1876 and 1937, respectively. Initially, the First Amendment only limited the federal government and did not apply to the states. However, in 1937, the Supreme Court extended the right of assembly to the states, recognizing that "the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental".
The First Amendment's protection of assembly allows citizens to engage in mass communication and collective action, empowering them to address grievances against the government.
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The right to assemble is linked to the right to petition
The right to assemble and the right to petition are enshrined in the US Constitution's First Amendment, which states:
> "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."
The right to assemble and the right to petition are distinct but linked rights. The right to assemble allows citizens to gather for a common purpose, such as a protest or parade, and is crucial for dissenting and unorthodox groups. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and elected representatives.
Historically, the right to petition was considered the primary right, with the right to assemble being subordinate and instrumental to it. However, over time, the right to assemble has gained equal importance and is now considered a fundamental right cognate to those of free speech and a free press. The Supreme Court has also recognised a "right of association" that protects citizens' ability to form groups or associations before assembling in public.
The right to petition has evolved beyond simply presenting written arguments to the government and now includes demands for the government to exercise its powers in the interest and prosperity of the petitioners and their views on politically contentious matters. Some scholars argue that the Petition Clause includes an implied duty for legislators to acknowledge, debate, or vote on issues raised by a petition.
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The right to assemble has been used by minority groups
The right to assemble has been a crucial legal and cultural protection for minority and dissenting groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. The right to assemble often involves non-verbal communication, including the message conveyed by the very existence of the group. For instance, in a demonstration, picket line, or parade, the assembly conveys more than the words on a placard or the chants of the crowd.
The Supreme Court initially ruled that Congress could limit the right of association for communists because of the group's announced desire to overthrow the government. However, four justices dissented, warning that this action placed the nation in danger of tyranny. In a series of cases in the 1960s, the Court reversed its earlier ruling, and by 1967, the freedom of association, part of the right of assembly, allowed communists to work in defense plants. In Roberts v. United States Jaycees (1984), a unanimous Supreme Court determined that United States Jaycees' chapters in Minnesota that denied memberships to women could not claim a violation of their free assembly rights.
In 1958, the Supreme Court expanded the literal text of the Free Assembly Clause to protect an analogous but extra-textual Freedom of Association. This expansion of the Assembly Clause was applauded by most observers as it covered more modern forms of democratic collective action. In 1965, scholar Irving Brant recounted how the case of William Penn and William Mead in 1670 influenced the founders in 1789 when the House of Representatives considered adding the Bill of Rights to the Constitution.
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The right to assemble has been upheld by the Supreme Court
The right to assemble is enshrined in the First Amendment of the US Constitution, which protects the right to freedom of religion, expression, assembly, and the right to petition. The First Amendment states:
> "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."
The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. The Supreme Court has upheld this right in several cases, interpreting the extent of the protection afforded by the First Amendment.
In 1876, the Supreme Court first considered questions related to the assembly clause, and it reconsidered it in 1937. In United States v. Cruikshank (1875), the Supreme Court considered a case that originated from the 1873 Colfax Massacre, in which three white men and several Black men were killed after a disputed election in Louisiana. Cruikshank and two others were convicted of violating the victims' constitutional rights, including the right to assemble. However, the Supreme Court held that the 14th Amendment did not incorporate the right to peacefully assemble at the state level.
In De Jonge v. Oregon (1937), the Supreme Court unanimously overturned Cruikshank, striking down an Oregon law that barred public meetings advocating for "any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution." The Court recognized that "the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." This decision extended the right of assembly beyond the federal government to the states.
In 1958, the Supreme Court expanded the Assembly Clause to protect an analogous but extra-textual Freedom of Association. The Court recognized a "'right of association' that does not appear in the text of the Constitution but is linked to the First Amendment rights of speech and assembly. This right to association prohibits the government from requiring a group to register or disclose its members or denying benefits based on an individual's membership in a particular group.
The public forum doctrine is closely linked to the right of assembly. The Supreme Court has recognized that streets and parks have historically been used for purposes of assembly and communicating thoughts between citizens, and therefore these spaces should be held in trust for the public.
While the right to assemble is a fundamental freedom, it is not absolute. The Supreme Court has recognized that the government may prohibit some speech and assembly that may cause a breach of the peace or incite violence.
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Frequently asked questions
The First Amendment to the United States Constitution, adopted on December 15, 1791, guarantees citizens the right to assemble peaceably and to petition the government for a redress of grievances.
The right to assemble has been interpreted differently over time. While English law allowed assemblies unless they endangered public safety, colonial protests were often labelled as dangerous to public order. The word "peaceable" has been interpreted as "legal" or whatever was allowed by law enforcement and lawmakers. Courts and legislators have outlawed gatherings with a "bad tendency" to produce disorder. The Supreme Court has also asserted the historical basis for the right to assemble for lawful purposes, and in 1958, expanded the Free Assembly Clause to protect the Freedom of Association.
The right to assemble has been invoked by various dissenting and unorthodox groups, including Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups.
