The Constitution’s First Amendment contains limits on government interference with very well known unalienable rights: religion, speech and press. The Amendment specifically restricts government interference with an activity necessary to exercise the first three named rights: the need for people to gather to practice religion, to talk about issues and to distribute information. The right of the people1 to peaceful assembly is protected as follows:
“Congress shall make no law … abridging … the right of the people peaceably to assemble …”
Right To Assemble Grew from Colonial Experience
“Revolutions are not made, they come… It comes out of the past. Its foundations are laid far back”. Wendell Phillips (1811-1884)
In response to the Boston Tea Party, the English Parliament passed a set of laws as punishment. In England they were known as the Coercive Acts of 1774; American colonists called them the Intolerable Acts. King George’s Royal Governor of Massachusetts, General Thomas Gage had been given authority to declare town meetings illegal, did so and enforced such orders with troops.2
With the Intolerable Acts the British Parliament assumed and exercised the authority to declare meetings of people illegal. General Gage used that authority to declare the Massachusetts Assembly illegal. The British would tolerate no assembly of Americans.
First Continental Congress Responds to the Intolerable Acts
Parliament passed the Acts in the spring of 1774. General Gage enforced them during the summer and fall. On October 14, 1774 The Declaration and Resolves of the First Continental Congress declared on October 14, 1774:
“The inhabitants of the English colonies in North-America, by the immutable laws of nature… have the following rights: They have a right peaceably to assemble,… and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal” 3
A Grievance of Declaration of Independence: Interference with Assembly
Among the grievances against King George outlined in The Declaration of Independence:
“He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise…”4
In 1776, Pennsylvania and North Carolina recognized the right of assembly for their citizens, as did New Hampshire in 1784 and Massachusetts in 1790. With the ratification of the Bill of Rights in 1791, the right of assembly was recognized in the US Constitution.
US v. Cruikshank, 1stAmendment Guarantee Against Federal Encroachment
United States v. Cruikshank, 92 U.S. 542 (1876), addressed the”right of the people peaceably to assemble”, but ruled the First Amendment guarantee protected the right against only federal government encroachment.5 Cruikshank, despite its soaring rhetoric on the nature of the right to assemble, actually defeated the intent of the Enforcement Act of 1870 to protect black voters in exercising their right to vote.6
Cruikshank was decided during the Reconstruction Period following the Civil War, and soon after ratification of the Fourteenth and Fifteenth Amendments. In the future, the Supreme Court would determine that those two amendments gave the federal government power to protect many rights found in the Bill of Rights, including the Right to Assembly from encroachment by state government.
Right to Assembly Since Cruikshank
Freedom of assembly has come to protect gatherings of individuals organized for diverse purposes. The Ku Klux Klan, civil rights advocates anti-war protestors and striking union workers, communists and the American Nazi party have been able to gather publicly in protest or in support of their causes. The civil rights movement gained added impetus with the March on Washington. Women’s suffragists filled city streets to advance their cause. In recent times, meetings and rallies of Tea Party activists have brought public attention to concerns about federal government expansion. Freedom of Assembly has shaped and continues to shape America.
Communists, Civil Rights Advocates and Nazis
In De Jonge v. State of Oregon, (1937) a communist’s “right to peaceable assembly” was found to be as fundamental as free speech and free press. Dirk De Jonge had been teaching communist doctrine to 300 people. The Supreme Court ruled that “the holding of meetings for peaceable political action cannot be proscribed.”
On March 2, 1961, in Columbia, SC, 187 African-American high school and college students marched to the South Carolina Statehouse grounds, carrying placards bearing such messages as “I am proud to be a Negro” and “Down with segregation.” They were arrested and convicted for breaching the peace. The Supreme Court reversed the convictions in Edwards v. South Carolina, finding: “in arresting, convicting, and punishing the petitioners … South Carolina infringed the petitioners’ constitutionally protected rights … free assembly … “
In 1977, the National Socialist Party proposed a march in the Village of Skokie, IL, home to many survivors of the Nazi holocaust. A court in Cook County, IL issued an order prohibiting the march. In National Socialist Party v. Skokie, the US Supreme Court overturned the order and ultimately the First Amendment Right of Assembly of the neo-Nazis was upheld by both the US Seventh Circuit Court of Appeals. The case demonstrated two things: the importance of First Amendment values even for distasteful ideas, and that the best response to distasteful speech is more speech. The Nazi/Skokie events have had the effect of motivating the telling of the holocaust story. 7
Eternal Vigilance: Maintaining America’s Freedom of Assembly
The revolutionary experience gave 18th Century Americans reason to suspect government efforts to inhibit the right of citizens to assemble together. The federal government has had a history of protecting against encroachments upon that right. However, it remains necessary for Americans to be vigilant in protecting that right.
In March, 2012, President Obama signed into law H.R. 347, titled: “Federal Restricted Buildings and Grounds Improvement Act of 2011”. Despite its official title, the law has become known as the “Trespass Bill”. The law potentially makes peaceful protest anywhere in the United States a federal felony with a possible penalty of ten years in prison.
The law restricts citizen activity in areas controlled by the Secret Service. These areas can include National Special Security Events (NSSE). NSSE’s have included Super Bowls, Academy Awards and national political conventions. When individuals receiving Secret Service protection are present such areas are covered by the “Trespass Bill”.
Such events, having large audiences, have historically been used to maximize the message of peaceably assembled Americans. The Right to Assemble has a long history. Current Americans owe it to their predecessors to see that it has a long future.
1 The term “right of the people” appears as well in the Second and Fourth Amendments. This phrase was at the center of an exchange between Senator Ted Cruz (R-TX) and Senator Diane Feinstein and is discussed in detail at: Senators Cruz & Feinstein: An Exchange That Should Not be News.
2 Or at least attempted to enforce such orders with troops. Gage had sent Redcoats to breakup an “illegal” town meeting in Salem, MA. His troops retreated when met by 3,000 armed Americans.
4 The legislative power being incapable of “annihilation” is of note. President Obama’s statement 2013 State of the Union statement comes to mind: “If Congress won’t act… I will.” That statement would seem to be at odds with the thought that the legislative power cannot be annihilated.
5Cruikshank, while referring to the Natural Law existence of the right to assemble and attributes of national citizenship, very narrowly read the First Amendment. The case grew out of an infamous event in Colfax, LA, in which more than 100 people died during a confrontation and its aftermath. Cruikshank and others were prosecuted under the Enforcement Act of 1870.
6 The Enforcement Act was passed under the 15th Amendment which guaranteed the right to vote to regardless of race. The Supreme Court freed Mr. Cruikshank and his co-defendants from federal prosecution for interfering with voting by freed blacks on certain technical grounds. The decision hampered federal efforts to enforce rights under the 14th and 15th Amendments for nearly 100 years. As a side note, the decision created confusion about the nature of the Second Amendment right to keep and bear arms for 135 years until that right was clarified in McDonald v. Chicago.in 2010.
7 An axiom about distasteful political speech is that the response is not to prohibit distasteful speech or ideas, but rather to promote the defeat of those ideas through vigorous public discussion and response. The 1977 events lead to the establishment of the Holocaust Museum and Education Center in Skokie.