Right of assembly allows citizens to form a more perfect union

Sunday, March 6, 2011

p>The First Amendment’s right for all of us “peaceably to assemble” has fueled some of the sharpest conflicts — occasionally violent — in the nation’s history.

From early public opposition to slavery and later support of civil rights, from battles over women’s suffrage to rallies in favor of Prohibition, from sometimes-violent labor protests to sometimes-violent demonstrations against international economic conferences, from emotional anti-war movements to feverishly patriotic motorcycle parades — freedom of assembly has enabled us to join with others to express ourselves in public.

The legal definitions of our right of assembly stem from two important court cases.

In an 1875 U.S. Supreme Court ruling, United States v. Cruikshank, the justices said, “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.”

And in 1937, in De Jonge v. State of Oregon, the Supreme Court found that assembly had a fundamental place alongside the better-known rights of free speech and free press. Echoing an earlier ruling, the Court said freedom of assembly could be overridden only when there was a “clear and present danger” — not just some official’s concern or suspicion — that laws would soon be broken.

“While the States are entitled to protect themselves from the abuse of the privileges of our institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect revolutionary changes in government,” wrote Chief Justice Charles Evans Hughes, “ … the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

A majority of Americans, in surveys conducted since 1997 by the First Amendment Center, can name only one freedom — speech — and only about one in 25 can identify all five freedoms. In each of those surveys, assembly ranks only slightly ahead of the least-identified First Amendment freedom, petition.

Yet the right to gather together with those of like minds, particularly to seek political change or support a government policy, serves as a basic tool of democracy. From the tea party movement to the established political parties, such assemblies are the stuff of national change.

The right of assembly also protects those bringing messages that society would rather not hear. In 1977, the Supreme Court ruled in National Socialist Party v. Skokie that the Ku Klux Klan was permitted to march through the Chicago suburb of Skokie, Ill., home to many Holocaust survivors. A federal judge wrote in an earlier ruling in the case that “it is better to allow those who preach racial hatred to expend their venom in rhetoric” than to allow government officials to determine what the public can see or hear.

More recently, the Supreme Court heard arguments last October in of Snyder v. Phelps, a case involving a protest at the Maryland funeral of a young Marine killed in combat. The Fred Phelps family, organized as the Westboro Baptist Church, of Topeka, Kan., began protesting at military funerals in 2005, claiming that U.S. troop deaths in Afghanistan and Iraq were punishment for Americans’ immorality, including tolerance of homosexuality and abortion.

The Westboro protests have sparked counter-assemblies designed to blunt or drown out their message. On Nov. 23, an estimated 2,000 to 3,000 people, many of them waving American flags, lined nearly a half-mile of the street in front of a church in Harrisonville, Mo., to crowd out a small Westboro delegation. And at many military funerals, a contingent of the Patriot Guard Riders provides a motorcycle escort for the funeral procession — and a screen between family members and the protesters.

Of course, government officials may regulate assemblies as long as the regulations are not linked to the views of those assembling. A doctrine called “time, place and manner” allows officials to set reasonable restrictions on when, where and how groups may gather — but not to prohibit or support such gatherings. Permit requirements and fees also are likely to withstand constitutional challenge, as long as the permits and fees are not designed to exclude some assemblies or to punish those with unpopular views.

The government may be able to stop people from associating in groups that engage and promote illegal activities, but — unless there are important and overriding government interests like national security — it can’t require groups to register or disclose members’ names. And it cannot deny government benefits because someone belongs, or used to belong, to an unpopular group.

A First Amendment without the right of assembly would leave a major gap in a framework of freedoms designed to allow us all to participate fully in the “marketplace of ideas.”

The rights to express our views in speech or print would be devalued if we could not also join in groups to exchange and debate those ideas and, ultimately, to affect how our government operates.