Freedom of Assembly


“Unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but what qualifies?

No First Amendment rights are absolute, but the right to gather is the only one that includes the most important limit in the actual words of the amendment: “the right of the people peaceably to assemble.”

That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940)). The “clear and present danger” standard is a particularly high hurdle for government officials to overcome if they want to prevent planned gatherings ahead of time.



Limits on Nonviolent Protests

Violence or the threat of violence isn’t the only limit on the right of assembly. Authorities may also prevent or stop gatherings that pose other immediate threats to public safety.


Police routinely arrest protesters who block traffic on freeways or bridges. That’s generally allowed, because maintaining public safety involves keeping streets open and traffic moving. At the same time, courts have repeatedly held that authorities aren’t justified in breaking up public protests just because they slow traffic, inconvenience pedestrians, are annoying, or make other people mad (see, for example, Edwards v. South Carolina, 372 U.S. 229 (1963) and Coates v. City of Cincinnati, 402 U.S. 611 (1971)).


However, as part of a wave of anti-protest legislation that picked up steam in 2021, some states have passed laws criminalizing protests that block traffic, even temporarily. For instance, laws in Oklahoma and Florida make it a crime to obstruct the normal use of roadways, including by simply standing in the street. Those same laws also extended protections to drivers who hit protesters. (Okla. H.B. 1674 (2021); Fla. H.B. 1 (2021).) It’s not yet clear whether courts will find these laws to be constitutional.


Protests that lead to property damage—or simply create a threat of property damage—might also be illegal. Under Florida law, for example, you can be arrested for participating in a group of three or more people who intend to engage in disorderly conduct that results in injury, property damage, or the danger of either type of harm—even if you don’t damage any property or do anything violent. And if the protest was large (25 or more people), you could be charged with aggravated riot—a second-degree felony. (Fla. Stat. § 870.01 (2021).)Did Restrictions on Gatherings During the Coronavirus Pandemic Violate Freedom of Assembly?


In an attempt to mitigate surging infection and hospitalization rates during the surges in the Covid-19 pandemic, public officials issued emergency orders limiting the size of public gatherings and closures or restrictions on certain businesses. In response to those orders, residents, businesses, and other organizations filed lawsuits claiming that the restrictions violated their constitutional rights, including the right to gather. In many—but not all—of these cases, the lower courts denied the plaintiffs’ requests for injunctions to prevent enforcement of the restrictions, finding that the emergency orders met the requirements for content-neutral restrictions on the time, place, and manner of gathering (discussed below).


There hasn’t been a definitive appellate court ruling on the issue of whether these orders violated the right to gather. (The U.S. Supreme Court ruled in late 2020 and early 2021 that two states’ restrictions on attendance at religious services during the pandemic could not be enforced, but those rulings were based on freedom of religion rather than the right to gather.)


Time, Place, and Manner Restrictions Are Usually Allowed

As is true for limits on free speech, courts have held that government may set rules on where, when, and how public protests and other gatherings can take place, as long as those rules are:

  • reasonable
  • “content neutral,” meaning they to aren’t an attempt to squelch demonstrations or other gatherings based on their political message, and
  • are “narrowly tailored,” meaning they’re designed to serve legitimate concerns (like health and safety) with as few restrictions as possible on constitutional rights.

Some examples of how these guidelines work in particular situations:

  • The public square. There’s less leeway to restrict demonstrations and other gatherings in places that are traditionally considered “public forums” for free expression—such as sidewalks, parks, and public squares—than on other types of public property like military installations, prisons, courthouses, and airport terminals.

  • Size limits. A federal court struck down an ordinance that limited the size of most gatherings in front of New York City Hall and the adjacent plaza, except for city-sponsored public events. As the court pointed out, the ordinance wasn’t narrowly tailored to serve the city’s legitimate safety concerns, and it could allow city officials to stop people from gathering based on their point of view. (Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D. N.Y. 2000).) However (as discussed above), some courts have looked more favorably at temporary, emergency restrictions on the size of public gatherings intended to limit the spread of Covid-19.

  • Permits. Generally, cities and other governmental bodies (like public universities) are allowed to require groups to get permits for demonstrations, parades, street festivals, and other large gatherings. But courts have struck down these requirements when they impose higher fees or other obstacles linked to the demonstrators’ controversial viewpoints and the expected response. (See, for example, Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).)

  • Curfews. As a general rule, courts allow curfews—which usually restrict people’s right to gather at nighttime—when public officials have declared an emergency, the curfews are needed to keep order due to immediate threats to life or property, and the restrictions are temporary.

  • Buffer zones. When it comes to laws aimed at keeping anti-abortion demonstrators a certain distance away from clinic entrances and patients, the U.S. Supreme Court has allowed some buffer-zone restrictions while striking down others. The different outcomes usually turn on whether a law is designed to serve important public objectives (like protecting privacy and access to medical facilities) without putting too many limits on the rights of protestors (see, for instance, Hill v. Colorado, 530 U.S. 703 (2000) and McCullen v. Coakley, 573 U.S. 464 (2014).) Of course, different outcomes may also depend on the changing makeup of the Court.

Gatherings on Public Property

Because the First Amendment applies only to government actions or laws that violate rights, private property owners are generally free to keep groups from protesting or gathering on their property. But there are limited exceptions. As the U.S. Supreme Court explained, the balance between property owners’ rights and the constitutional rights of people who use that property changes the more owners open up their property for public use for their own advantage, such as on privately owned bridges, railroads, and company towns. (Marsh v. State of Ala., 326 U.S. 501 (1946).)

Also, some states—like California and New Jersey—provide broader rights than the federal constitution for assembly and speech on certain types of private property, such as shopping centers and private universities.

Seeking Legal Help

If you believe that governmental authorities have violated your right to assemble, a civil rights attorney could help you explore your legal options. But if you’ve been arrested at a protest or other gathering, you should speak with a criminal defense attorney as soon as possible, even if your case involves potential violations of constitutional rights.

 

The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights. For example, debates in the House of Representatives during the adoption of the Bill of Rights linked “assembly” to the arrest and trial of William Penn for participating in collective religious worship that had nothing to do with petitioning the government.

 

While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.” Many scholars believe that focusing singularly on an expansive idea of speech undervalues the importance of providing independent protection to the remaining textual First Amendment rights, including assembly and petition, which are designed to serve distinctive ends.

 

Assembly

Assembly is the only right in the First Amendment that requires more than a lone individual for its exercise. One can speak alone; one cannot assemble alone. Moreover, while some assemblies occur spontaneously, most do not. For this reason, the assembly right extends to preparatory activity leading up to the physical act of assembling, protections later recognized by the Supreme Court as a distinct “right of association,” which does not appear in the text of the First Amendment.

 

The right of assembly often involves non-verbal communication (including the message conveyed by the very existence of the group). A demonstration, picket-line, or parade conveys more than the words on a placard or the chants of the crowd. Assembly is, moreover, truly “free,” since it allows individuals to engage in mass communication powered solely by “sweat equity.”

 

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. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

 

The right of assembly gained particular prominence in tributes to the Bill of Rights as the United States entered the Second World War. Eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt, all emphasized the significance of the assembly right. At a time when civil liberties were at the forefront of public consciousness, assembly figured prominently as one of the original “Four Freedoms” (along with speech, press, and religion). When, however, President Franklin Delano Roosevelt switched to a different grouping of “four freedoms” in an effort to rally support for American entry into WWII, assembly (and press) dropped out. Neglect of assembly as a freestanding right has continued ever since. In fact, the Supreme Court has not decided a case explicitly on free assembly grounds in over thirty years. But despite its recent state of hibernation, the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called “the right to differ.”

 

Petition

The right to “petition the Government for redress of grievances” is among the oldest in our legal heritage, dating back 800 years to the Magna Carta, and receiving explicit protection in the English Bill of Rights of 1689, long before the American Revolution. Ironically, the modern Supreme Court has all but read the venerable right to petition out of the Bill of Rights, effectively holding that it has been rendered obsolete by an expanding Free Speech Clause. As with assembly, however, the right to petition is not simply an afterthought to the Free Speech Clause. 

 

The right to petition plays an important role in American history. The Declaration of Independence justified the American Revolution by noting that King George III had repeatedly ignored petitions for redress of the colonists’ grievances. Legislatures in the Revolutionary period and long into the nineteenth century deemed themselves duty-bound to consider and respond to petitions, which could be filed not only by eligible voters but also by women, slaves, and aliens. John Quincy Adams, after being defeated for a second term as President, was elected to the House of Representatives where he provoked a near riot on the House floor by presenting petitions from slaves seeking their freedom. The House leadership responded by imposing a “gag rule” limiting petitions, which was repudiated as unconstitutional by the House in 1844.

 

One of the risks of representative democracy is that elected officials may favor the narrow partisan interests of their most powerful supporters, or choose to advance their own personal interests instead of viewing themselves as faithful agents of their constituents. A robust right to petition is designed to minimize such risks. By being forced to acknowledge and respond to petitions from ordinary persons, officials become better informed and must openly defend their positions, enabling voters to pass a more informed judgment.

 

The right to petition should be contrasted with the right to instruct. A right of instruction permits a majority of constituents to direct a legislator to vote a particular way, while a right of petition assures merely that government officials must receive arguments from members of the public. The drafters of the Bill of Rights decided not to include a right of instruction in order to encourage legislators to exercise their best judgment about how to vote.

 

Today, in Congress and in virtually all 50 state legislatures, the right to petition has been reduced to a formality, with petitions routinely entered on the public record absent any obligation to debate the matters raised, or to respond to the petitioners. In a political system where incumbent legislators can make it all but impossible to mount a credible re-election challenge, an energized right to petition might link modern legislators more closely to the entire electorate they are pledged to serve. Some scholars have even argued that the Petition Clause includes an implied duty to acknowledge, debate, or even vote on issues raised by a petition. The precise role of a robust Petition Clause in our twenty-first century democracy cannot be explored, however, until the Supreme Court frees the Clause from its current subservience to the Free Speech Clause. 

 

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