Legalese — The Right to Assembly

Small, impromptu protest in downtown Monroe on Monday, June 1, 2020, in support of Black Lives Matter. Photo credit: Sharon Swanepoel

The United States of America originated with a rebellion.  Our forefathers and mothers became so frustrated when the King of England wouldn’t listen to them and address their grievances that they fought a war and started a whole country.

Thus, when creating the rules for the new country, one of the very first rights listed in the First Amendment, alongside the right to free speech and the right to a free press is the right to peaceably assemble.  By placing this right in the First Amendment, the founders made it clear that getting together in order “to petition the government” was an essential part of citizens’ ability to let the government know what they thought.  Peaceably dumping tea into the Boston Harbor was officially written into the Constitution.

Of course, like all rights there are limits.  Just like free speech has limits – you can’t yell “fire!” in a crowded theater – the right to assemble has limits.  The government can, under limited circumstances, prevent crowds from gathering.  They can require permits, and they can ensure public safety.  How limited those circumstances are has been tried in the courts.

“The right of the people peaceably to assemble for lawful purposes existed long before the Constitution of the United States.  In fact, it is, and always has been, one of the attributes of citizenship under a free government.”  U.S. v. Cruikshank, 92 U.S. 542 (1875).  The Cruikshank court went on to say, “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.”  In other, plainer words, telling the government that you don’t like what the government is doing is exactly the point of the peaceable assembly provision in the Constitution, and the basic right pre-dates the Constitution.

In Hague, Mayor, et al v. Committee for Industrial Organization, 307 U.S. 496 (1939), the city of Jersey City, New Jersey forbade the leasing of any building or hall without a permit from the Chief of Police.  A group of citizens were forbidden from meeting under the guise that they were “communists” and were prevented from distributing leaflets about the National Labor Relations Act.  The prevention had nothing to do with public safety or law and order.  The Supreme Court found against Jersey City, saying, “Citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom.  All of the respondents’ proscribed activities had this single end aim.”  In other words, it doesn’t matter what the assembled citizens are talking about, and whether their ideas are wise or foolish in the eyes of the city.  They have the right to give their opinion to other citizens and have a dialogue about it.  That’s the whole point of being an American.

One man’s foolishness is another man’s wisdom.  There was a time when a round world or the Earth revolving around the sun seemed like foolish ideas.  Conventional wisdom changes, often through the exchange of ideas.  We can’t learn from each other if we aren’t given the opportunity to hear what other people think.  Peaceable assemblies – demonstrations – sometimes give us a visual representation about the volume of people who share an idea.  We don’t have to agree with each other, but we do have to let each other speak.  If we don’t, we’ll have another revolution on our hands.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  All opinions herein are those of the author only.

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