Slide1: An Independent Life
for Freedom of Assembly?
James W. Nickel
Professor of Law
and Affiliate Professor of Philosophy
Sandra Day O’Connor College of Law
Arizona State University
Why Boulder is a good place to discuss freedom of assembly: Why Boulder is a good place to discuss freedom of assembly Assemblies in Boulder have often been riotous
CU Students Riot Over Underage Drinking Crackdown On May 2, 1997, about 1,500 people, mostly University of Colorado (CU) students, rioted in the University Hill section of Boulder following a year-long crackdown on underage drinking by local police The riot began shortly after police arrived at a party where hundreds had gathered and built a bonfire in the street, a CU end-of-the-school-year tradition. During the five-hour standoff, rioters overturned dumpsters, set bonfires, and threw rocks, bricks and bottles at law enforcement officers. More than 100 officers, from Boulder and surrounding areas, were called in to quell the riot. Police said it was the worst riot in the city in 25 years. The riot ended with 11 people arrested and dozens of student treated for minor injuries. Twelve officers were injured, two of them seriously, including on officer who was hit by a brick that smashed her riot helmet. More than 60 vehicles, including a dozen police cars, were damaged. Additional damage to city property and local businesses is estimated to be $350,000 to $500,000. http://ndsn.org/mayjun97/boulder.html
The city of Boulder downsized the Halloween Mall Crawl
The Halloween Mall Crawl began in 1980, peaking in 1990 with 40,000 people. After vandalism and arrests climbed, Boulder police carried out a three-year plan enforcing open container laws and blocking off certain streets. By 1992, the crowd had diminished to about 3,000.
http://web.dailycamera.com/pearl/19xtim.html
First Amendment U.S. Constitution: First Amendment U.S. Constitution 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
Notice the semicolons
Assembly defined in terms of gathering and interacting: Assembly defined in terms of gathering and interacting Gathering is people moving to or being in the same physical location for some shared purpose
Interacting is engaging in joint activities such as speaking, listening, observing, visiting, worshipping, protesting, eating, buying/selling, and playing sports and games The “shared purpose” often involves a mixture of cooper-ation and competition. In 1804 Aaron Burr and Alexander Hamilton assembled for a duel in which Hamilton was killed.
Paradigmatic violations of freedom of assembly: Paradigmatic violations of freedom of assembly
Arrests for organizing peaceful protests and demonstrations
Intentionally failing to protect peaceful protesters against attacks by counter-demonstrators
Preventing union organizers from holding meetings in a town
Three theses about freedom of assembly in American constitutional law: Three theses about freedom of assembly in American constitutional law Freedom of assembly is now mostly subsumed under freedom of speech and freedom of religion. It has little independent life of its own. When it was swallowed by speech and religion its scope expanded.
Modest measures to expand further the scope of freedom of assembly are not likely to give it a strongly independent life of its own. The problem is not that we cannot find additional content for assembly, but that most of this content is likely to come from other recognized rights. Assembly would still very much be in the shadow of the freedoms of religion, speech, and association.
Radical expansion to include recreational gatherings would give freedom of assembly more independent life, but it isn’t clear that constitutional protection in this area is necessary.
How freedom of assembly acquired a broader scope: How freedom of assembly acquired a broader scope In cases such as Cox v. New Hampshire, 312 U.S. 569 (1941) and Kunz v. New York, 340 U.S. 290 (1951) questions about religious assemblies are simply treated as matters of freedom of religious speech. In such cases the three clauses of the First Amendment work together, but freedom of speech takes the lead. “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.” Cruikshank 92 U.S. 542 (1875) Perhaps we started with a quite narrow conception: assembly-for-the-purpose-of-petitioning-and-protesting. Something slightly broader than this is suggested by Cruikshank. As First Amendment doctrine developed in the 20th century it swallowed freedom of assembly. Assembly became part of freedom of speech and press. Once swallowed, freedom of assembly had a broader scope, governed by a general free speech doctrine that included freedom of religious speech and assembly
Slide8:
t Freedom of assembly in a broad sense (includes protections for assembly that are already part of many basic liberties and rights) Four conceptions of “freedom of assembly” Freedom of assembly in the Contemporary or First Amendment sense (includes the assembly dimensions of freedom of speech and freedom of religion) Freedom of assembly in the narrow—and perhaps original—sense (freedom to assemble in order to petition government)
Freedom of assembly in a very broad sense that extends to recreational and economic gatherings
I. The contemporary conception of freedom of assembly: I. The contemporary conception of freedom of assembly The scope of freedom of assembly now goes considerably beyond gathering to petition and protest. It covers assembly to communicate about anything remotely related to public affairs. It covers religious meetings. It probably does not cover gatherings for recreational or economic purposes if they do not have religious, political, or associational dimensions.
Almost all legal treatments of freedom of assembly now occur within freedom of expression doctrine. Assembly is seldom mentioned as a separate subject.
Let’s briefly review the contemporary conception.
Distinguishing Assembly from Freedom of Association: Distinguishing Assembly from Freedom of Association Assembly and association are often confused
This is unsurprising since association frequently involves gathering and interacting
But it is quite possible to assemble without associating
For example, one may assemble with others to hear a speaker even though one’s motive is simply curiosity and one has no intention of affiliating or joining an organization with the other attendees
Assembly: gathering and
Interacting with others
for a shared purpose
Association: interaction
with others that involves
affiliation, belonging,
or membership
Limits on freedom of assembly: Limits on freedom of assembly Assembly often needs regulation because of its inherent physical dimensions
Assembly brings people’s bodies together. This creates blockages in traffic flows, nuisances, and dangers of sudden common action such as rioting
Regulations of Time, Place, and Manner of Assemblies are Often Permissible: Regulations of Time, Place, and Manner of Assemblies are Often Permissible “[S]o called 'content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." City of Renton v. Playtime Theatres, 475 U.S. 41 (1986)
These regulations must:
+serve a substantial government interest
+be content-neutral
+not be excessively vague or overbroad
Licensing and permit systems for assemblies are often permissible: Licensing and permit systems for assemblies are often permissible
In Cox v. New Hampshire (312 U. S. 569 (1941)) the Court upheld a permit system because it enabled officials to arrange proper policing for events and to avoid competing uses of the same facility. Permits may be required for assemblies that are very large, use amplified sound, and/or present unreasonable dangers “to the health or safety” of other users of the facility. Thomas and Windy City Hemp Development Board v. Chicago Park District, 534 U.S. 316 (2002).
There must be strong reasons for having a permit system, the standards for refusing permits must be content-neutral, and they must not give “unduly broad discretion” to officials. Procedural safeguards, such as opportunities for appeals, may also be required.
Permit ordinances must be “narrowly tailored to serve a significant governmental interest” but they are not required to satisfy the “Least Restrictive Alternative” test. Ward v. Rock against Racism, 491 U.S. 781 (1989).
Assemblies must respect property rights: Assemblies must respect property rights Assemblies often occur in privately owned (or rented) buildings, tents, or fields. Some public facilities such as military installations and wilderness area may be put off limits for meetings
Parks, plazas, sidewalks, roads, and public buildings are common areas of assemblies
There has been litigation in the US and Europe over whether privately owned shopping centers may exclude protesters
An assembly has to occur somewhere, but public and private property rights can make most locations unavailable
A right of access to public spaces: A right of access to public spaces So that public and private property rights do not make assembly impossible, people have a right to assemble in streets and parks.
“streets and parks…have immemorially been held in trust for the use of the public and…have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Hague v. CIO, 307 U.S. 496 (1939) at 515.
“public sidewalks, streets, and ways…are ‘quintessential’ public forums for free speech.” Hill v. Colorado, 530 U.S. 703 (2000)
Peacefulness as a requirement: Peacefulness as a requirement Freedom of assembly does not extend to gatherings that are violent or seriously disruptive.
“The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it…must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order….”
Hague v. CIO, 307 U.S. 496 (1939) at 515.
The response of authorities must be proportional to the dangers posed by the gathering
Hostile Audiences: Hostile Audiences Rights of peaceful assembly should not be withdrawn because a hostile opposing group is present.
Dispersing a gathering may be permissible if there is an “imminent threat of riot or uncontrollable disorder.” Justice Black, dissenting opinion in Feiner v. New York 340 U.S. 315 (1951). See also Edwards v. South Carolina, 372 U.S. 229 (1963).
If the police are likely to be able to handle the crowd then dispersing a gathering to prevent possible trouble is impermissible.
II. Expanding freedom of assembly: II. Expanding freedom of assembly Constitutional materials are available for a broader conception of freedom of assembly that goes beyond protests, expression, and religion.
Many basic liberties and rights have central components involving meeting and interacting. If we put all of those together we can assemble a broader sense of freedom of assembly without going outside settled constitutional norms.
I believe this method is within the bounds of fidelity to the Constitution.
Illustration of drawing on other rights for content: Illustration of drawing on other rights for content There is a constitutionally recognized right to a fair trial in criminal cases. In order for fair trials to occur lots of meetings are needed. Attorneys and clients need to be free to meet, even if the client is in jail. Potential and chosen jurors need to assemble. Spectators need to be free to gather for and seek admission to a public trial. The right to a fair trial in criminal cases cannot be respected and protected by government unless it allows people to move and assemble in the ways that are indispensable to the conduct of fair and public trials. The right to a fair and public trial has protected some kinds of assembly from the beginning, and our conception of freedom of assembly can draw on that
Slide20:
Fair trials and
due process
Economic liberties? Freedom of religion Sexual liberties Freedom of speech and press Freedom of Association Freedom and privacy of home and family
Assembly can gather content from other rights
Freedom of
movement Freedom of assembly
in the broad sense
Freedom of home and family protects family gatherings and co-habitation: Freedom of home and family protects family gatherings and co-habitation Constitutionally recognized rights in the area of home and family include the right to marry, to control the upbringing and education of children, to procreate, to purchase and use contraceptives, to abortion, and to refuse consent to medical treatments.
Being together with one’s family and having family gatherings are central parts of freedom in this area
Moore v. City of East Cleveland (431 U.S. 494 (1977) is an interesting example of constitutional protection for the freedom of an extended family to live together. The Court overturned a city ordinance limiting occupancy of a dwelling to a single family because it prevented a grandmother from living together with her two grandsons (who were cousins rather than brothers). “When a city undertakes such intrusive regulation of the family…the usual judicial deference to the legislature is inappropriate.”
Freedom of association protects many types of gatherings: Freedom of association protects many types of gatherings Although freedom of association is not an enumerated constitutional right, it is now protected on First Amendment and Substantive Due Process grounds. See NAACP v. Alabama, 357 U.S. 449 (1958). See also Roberts v. Jaycees, 468 U.S. 609, 622 (1984).
The liberties to affiliate and belong require that people be free to assemble and meet for the purpose of creating and participating in families, friendships, organizations, and other forms of affiliation.
Sexual liberties protect some gatherings: Sexual liberties protect some gatherings Lawrence v. Texas, 539 U.S. 558 (2003), protects private consensual homosexual activity against criminalization. Presumably the same grounds protect private consensual heterosexual activity.
Freedom in the area of sex centrally involves being together and interacting with one’s partner.
These freedoms are already covered by freedom of association.
Freedom to move and stop protects loitering: Freedom to move and stop protects loitering In 1992 Chicago passed an anti-loitering ordinance that permitted police to clear the streets of people they believed were gang members.
The ordinance was overturned by Chicago v. Morales, 527 U.S. 41 (1999), Justice Stevens wrote for the majority:
“The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view… Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).
“On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).”
Notice that freedom of assembly is not mentioned.
Could the economic liberties contribute?: Could the economic liberties contribute? Economic liberties enjoy some constitutional protection. Important liberties include pursuing a profession, entering into and enforcing contracts, and acquiring, having, using, and conveying property of various kinds.
Freedom in the economic area involves gathering and interacting with others. For example, meeting with someone to seek employment, to make a contract, and to sell or rent property.
Perhaps wholesale restrictions on these kinds of meetings would be unconstitutional.
If freedom of assembly were explicitly expanded along these lines would it have a strongly independent life?: If freedom of assembly were explicitly expanded along these lines would it have a strongly independent life? It might at least merit recognition in the indexes of textbooks on American constitutional law. This approach gives freedom of assembly content not derived from speech or religion. For example, it extends freedom of assembly to the associational and sexual spheres
It still relies, however, on other rights to generate content for freedom of assembly. Freedom of assembly would still very much stand in the shadow of freedom of religion, freedom of speech, and freedom of association. These biggies would continue to attract most of the action.
Without radical expansion I do not foresee a big independent future for freedom of assembly.
IV. Major expansion?: IV. Major expansion? One way to give freedom of assembly more independent life would be to have it cover recreational gatherings that do not fall within the scopes of the freedoms of religion, speech, and association.
Examples of such events include:
Instrumental music concerts
Sports events such as football games with many spectators
An informal sports victory celebration in the streets
An informal but large halloween street party?
Markets and fairs
Assembling for such events might have lower priority within freedom of assembly, just as commercial speech has within freedom of speech
Do such events really need constitutional protection?: Do such events really need constitutional protection? Not all of our valued freedoms are protected by our constitutional law. Many liberties are protected through checks and balances, statutes, and the tolerant customs of a free people.
To make constitutional protections available to recreational gatherings would make available judicial scrutiny at an intermediate or higher level to alleged violations of the right to recreational assembly.
Conclusion: Conclusion Giving freedom of assembly an independent life of its own would require considerable judicial innovation in bringing about a major scope expansion.
Such innovation is unlikely to occur. Major scope expansion would have to occur in a context where there is reasonable doubt as to the need for greatly widened constitutional protections for gatherings. The dissenters would have a point.