Info Brief: Assembly

For James Madison and the Founding generation, the right of assembly was closely connected to a famous episode in history—the arrest and trial of William Penn for participating in religious worship with others in 1670. In fact, debates in the House of Representatives during the battle over the Bill of Rights specifically linked the Amendment’s protection of “assembly” to the famous example of William Penn’s arrest and trial.

First, a bit about William Penn. Penn was a Quaker. He was the founder of Pennsylvania. Following his arrest and trial, he would receive a charter from King James II to start Pennsylvania and depart England in 1681. Penn’s trial took place in England a little over a decade earlier.

England had an official religion—the Church of England, headed by the King. England’s Conventicle Act banned religious assembly of over 5 people outside of the official church. Penn was arrested for holding a Quaker meeting in violation of this law. Simply put, he was preaching his Quaker faith in public. Defying the royal judge, Penn’s jury initially refused to punish Penn for unlawful assembly even though he was clearly guilty under the letter of the law. The judge then imprisoned members of the jury overnight without food, water, or heat—threatening to keep them there until they convicted Penn. Penn shouted to the jury, “You are Englishmen, mind your Privilege, give not away your Right.”

The jury still said that Penn wasn’t guilty. The judge then fined the jury for contempt of court—in other words, for defying him and ruling in Penn’s favor—and sent them to prison until they paid the fine. One of the jurors challenged this move—securing a win in the Court of Common Pleas, which concluded that a judge may not imprison a jury for refusing to rule the way the judge would like.

The Founders kept this story in mind when they thought about religious liberty, the right to assemble, and the right to trial by jury—all liberties that made their way into the Bill of Rights.

The freedom of assembly protects our right to gather together with others—whether as part of a political meeting, religious gathering, street protest, or parade. There are few Supreme Court decisions squarely on the right of assembly, but many cases touch on it in various ways. Furthermore, there is often an overlap between assembly rights and free speech rights.

The assembly right is the only right in the First Amendment that requires more than a lone individual. You can speak alone. But you can’t assemble alone. And while some assemblies occur spontaneously, most don’t. For this reason, the assembly right extends to the preparatory work before the physical act of gathering.

The assembly right has been especially important to groups challenging the status quo.

While we think of abolitionists—those leading the fight against slavery—as heroes today, they were extremely unpopular in their own time—and not just in the South. National leaders from the North explicitly denounced them as dangerous and disloyal instigators of the Civil War. They were seen as rabble-rousers—sowing discord and threatening violence among white Americans.

Now, why did so many people denounce the abolitionists—or worse? What were they afraid of?

They were afraid of the effects of the abolitionist message. They were afraid of the abolitionists’ ideas. In short, many feared slave revolts throughout the South. This led many to believe that abolitionist expression was different—that it must be restricted or banned.

That’s why before the Civil War, states like North Carolina and Alabama had laws on the books banning expression with a tendency to incite violence or insurrection. That’s why Missouri banned anti-slavery speeches or forms of expression. And that’s why states across the South strictly limited abolitionist meetings. And when abolitionist groups tried to mail their materials throughout the country in the 1830s, Southern states (especially South Carolina) responded by destroying the mail and preventing it from being delivered. And—with the support of Andrew Jackson—Congress passed the Post Office Act, asking postmasters to support local censorship laws.

Even in Philadelphia, an 1835 mass meeting resolved that the actions of the abolitionists, “in organizing societies, maintaining agents, and disseminating publications intended to operate upon the institutions of the South” are “unwise, dangerous, and deserving emphatic reprehension and zealous opposition.” And political and community leaders often organized mobs to suppress abolitionist meetings and expression—sometimes leading to violence and even death. Perhaps the most famous episode was the death of Illinois printer Elijah Lovejoy in 1837.

In the end, we had mob violence against abolitionists throughout the West and South and riots in NYC and Philadelphia. These mobs often worked to close down abolitionist meetings—attacking the right of abolitionists to assemble.

These were groups of African Americans meeting before, during, and after the Civil War to offer a vision of freedom and equality for all Americans and demand these rights for African Americans. These African American Convention had an important influence on the shape of the landmark statutes and constitutional amendments that were enacted during Reconstruction.

Women drew on assembly rights to fight for women’s suffrage. While women couldn’t vote, women organized a series of conventions promoting a vision of sex equality—at home, at work, and at the ballot box.

The most famous example is the Seneca Falls Convention in 1848. There, the Convention produced one of the most famous documents in American history—the Declaration of Sentiments. The Declaration of Sentiments used the Declaration of Independence as its model—laying out a series of wrongs against women and advancing a vision of an America in which men and women were treated equally.

Or fast forward to the twentieth century. The first ever protest at the White House was held by women—including Alice Paul, among other suffragists—fighting for their right to vote. After Woodrow Wilson’s reelection, in 1916, Paul called for members of the National Women’s Party to picket the White House to put pressure on Democratic Senators to vote for the Nineteenth Amendment—protecting women’s right to vote. They held up banners that drew on the language of the Declaration of Independence and the American Revolution. For instance, one read: “Governments derive their just powers from the consent of the governed.”

Initially, the picketers were mostly left alone, and President Wilson would even wave to them as he entered and left the White House. But after U.S. entry into World War I, things changed. And police began arresting women outside the White House. But women kept protesting.

President Wilson eventually relented, giving his support to the Nineteenth Amendment in January 1918.

The Supreme Court extended the right of assembly beyond the national government and applied it to state abuses—what lawyers call incorporation—in the unanimous 1937 decision: De Jonge v. Oregon. The case involved a peaceful meeting of Communists in Oregon. The communists were arrested and tried under Oregon law for meeting as part of a group that sought, in part, to violently overthrow the government. Even so, the Supreme Court threw out the conviction and recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

Some examples of the exercise of assembly rights today are parades, protests, and the like. But the Supreme Court has long concluded that the government may impose certain time, place, and manner regulations on these events, consistent with the First Amendment.

Most public gatherings—like protests—are governed by (what the Supreme Court refers to as) public forum doctrine. The idea is pretty simple in theory. The government is allowed to regulate expressive activity in public spaces—like protests and parades—through (what the Court calls) reasonable “time, place, and manner” restrictions. Time, place, and manner regulations include things like rules that require you to get a permit before holding a parade. Or that tells you that you can’t make loud noises at night, when people might be sleeping—or next to a school, where students may be learning. The idea is that the government can’t restrict the content of the message, but it can sometimes regulate when you say it—or how loudly you say it—in order to maintain the public’s health, safety, and welfare.

So, practically speaking, while the Supreme Court recognizes an abstract First Amendment right to gather together on streets and in parks for meetings, speeches, parades, protest marches, picketing, and demonstrations, it also grants the government—usually police officers—broad discretion to regulate public assemblies in the name of preserving public order. And the Court has upheld regulations on political protests, parades, and labor picketers—to name just a few groups.

Technically, these cases rarely mention the right of assembly. But this is simply a quirk of how the Supreme Court formally speaks about these cases. They clearly go to the core of our right of assembly.