The Freedom of Assembly Clause

Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble. . . .

—Tabatha Abu El-Haj

Introduction

The First Amendment establishes “the right of the people peaceably to assemble.” The existence of this right was not controversial at the Founding. As the Supreme Court acknowledged in United States v. Cruikshank (1875), “The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution . . . and always has been, one of the attributes of citizenship under a free government.”¹ The original public meaning and historical scope of the right is capacious. From the early Republic through the nineteenth century, Americans entertained and established a conception of the right that was broader and more robust than its English predecessor. However, the Supreme Court’s attention to assembly has receded since the 1940s. The right was important in several decisions overturning convictions of African Americans who participated in peaceful civil rights demonstrations, but federal courts have largely ignored it since the close of the civil rights era. The Supreme Court last decided a right-of-assembly claim four decades ago.

History Before 1787

A right of assembly was not enumerated in the Magna Carta of 1215.² Nevertheless, it emerged in English constitutional law as a necessary corollary to the right of petition.³ The right, while extending to the public streets, was limited by a series of riot acts starting in 1412 and by the common-law crimes of riot and unlawful assembly as enforced by juries.⁴

In 1670, for example, William Penn was arrested and tried in London for delivering a sermon to Quakers gathered on a public street in violation of the 1664 Conventicle Act, which banned “any Nonconformists” from assembling for religious purposes.⁵ A jury ultimately acquitted Penn and his fellow Quaker, William Mead, of these charges arising out of their religious worship on the public street. The incident loomed large in early American law because of the prominence of Quakers in Philadelphia.

The people’s right to assembly was enshrined in several state constitutions adopted after independence. By 1789, the constitutions of five states—Massachusetts, New Hampshire, North Carolina, Pennsylvania, and Vermont—provided for the right of the people “to assemble together, to consult for their common good” in provisions separate from those protecting freedom of speech.⁶ In Massachusetts and New Hampshire, the right was limited to assembly “in an orderly and peaceable manner.” No such limit appeared in the North Carolina, Pennsylvania, or Vermont Declarations of Rights. In all instances, the right of assembly was closely associated with processes for seeking “redress of grievances.” Thus, it was understood as a means for achieving popular sovereignty and allowing people to influence governance directly and meaningfully.⁷

Adoption of the Assembly Clause

During the Constitutional Convention, there was no significant debate concerning the assembly right, but its importance was referenced by prominent Anti-Federalists during the ratification debates. Federal Farmer declared that “the people have a right to assemble in an orderly manner.”⁸ Centinel observed that the “grand palladium” of liberty included “the right of the people to assemble peaceably for the purpose of consulting about public matters.”⁹ Consequently, Virginia, New York, and North Carolina pressed for a bill of rights with explicit recognition “that the people have a right peaceably to assemble together to consult for the common good . . . .”¹⁰

The First Congress took up the demand for a bill of rights in 1789. Among the amendments proposed by James Madison was one specifying that “[t]he people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions or remonstrances for redress of their grievances.”¹¹ On August 15, the House debated a consolidated text: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.”¹²

The decision to combine the right of assembly with the freedom of speech and press appears to have been the result of a stylistic change by the select committee.¹³ During the ensuing floor debate, Representative Theodore Sedgwick of Massachusetts criticized the proposed right of assembly as redundant with the “freedom of speech,” remarking that “[i]f people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question.”¹⁴ Representative John Page of Virginia reminded him that “people have also been prevented from assembling together on their lawful occasions.”¹⁵ After Page spoke, the House defeated Sedgwick’s motion to strike “assembly” from the draft amendment by a “considerable majority.”¹⁶

The final text of the First Amendment, which is strikingly similar to the House’s consolidated text, emerged in the Senate, which introduced a right to petition the legislature, combined these rights with protections for religious freedom, and introduced the specific reference to Congress. While the Senate did not keep a record of its debate, the House debate clarifies that right of assembly was considered a separate and distinct right that encompassed more than meetings to address political grievances and entailed a right of access to public streets and spaces.¹⁷

Early Practice

One of the first questions to arise after ratification was whether the right of assembly protected associations or only temporary gatherings.¹⁸ Although the legality of political associations, such as the Sons of Liberty, went unquestioned by the colonists during the American Revolution, the creation of Democratic-Republican Societies in the spring of 1793 drew the ire of the Federalists. The Societies, which had organized around criticisms of the Washington Administration’s apparent alliance with Great Britain, were accused of undermining popular sovereignty by seeking to exercise political power outside of the legislature.¹⁹ Federalists implied that the right of assembly protected only temporary gatherings.²⁰

In 1798, a Federalist Congress enacted the Sedition Act, which criminalized speech critical of the government, and also prohibited individuals from “unlawfully combin[ing] or conspir[ing] together, with intent to oppose any measures of the government of the United States.”²¹ Democratic-Republican Societies maintained they were merely asserting their unalienable right to assemble together in a peaceable manner and participated in a variety of festivities, feasts, and processions in the public streets to demonstrate their continued political opposition to the Washington Administration.²² Ultimately, Democratic-Republicans argued that the Sedition Act was unconstitutional, a position that is generally viewed to have been vindicated by Jefferson’s election in 1800.

Nineteenth-Century Treatises and State Court Precedents

The First Amendment does not protect all gatherings: Assemblies must be peaceable. In 1927, Leon Whipple, the first Chair in Journalism at the University of Virginia, noted that in “its original meaning,” the term “peaceable” was not “to be confused with ‘legal’ or ‘permissible.’”²³ In the early twentieth century, the meaning of “peaceable” had not yet been litigated formally in federal courts because of their historically limited jurisdiction and the fact that the First Amendment had not yet been incorporated.

Nevertheless, nineteenth-century Americans settled on a capacious understanding of this fundamental right. The mere fact that an assembly was illegal did not deprive its participants of constitutional protection.²⁴ The constitutional shield evaporated only when an assembly descended into a “riot” or “unlawful assembly”—common-law crimes that turned on the presence of violence or an imminent threat of violence to persons or property. In 1844, an American Law Magazine article explained that American law could constitutionally preserve the common law of riot and unlawful assembly because gatherings “which look to violence and not to reason and the influence of a strong expression of public opinion, do not fall within the protection of the constitutional guarantee.”²⁵

Nineteenth-century legal treatises emphasized that nonviolent illegal actions did not render an assembly outside the scope of the right. Professor Albert Wright, writing about the Wisconsin constitution, observed that under the right of assembly, “any number of people may come together in any sort of societies, religious, social or political, or even in treasonous conspiracies.”²⁶ Wright added that “so long as they behave themselves and do not hurt anybody or make any great disturbance, they may express themselves in public meetings by speeches and resolutions as they choose.”²⁷ John Randolph Tucker took a similar view in his treatise on the U.S. Constitution, declaring that “the right of the people peaceably to assemble . . . does not prevent interference with the riotous assemblages of the people; where there is no riotous conduct the government cannot interfere.”²⁸

Nineteenth-century American cities did not require citizens to ask permission before assembling.²⁹ “In Britain, the people were not free to assemble in the streets and parks without official permission,” as Professor Michael McConnell has noted, but the American understanding of the freedom of assembly broke with this tradition.³⁰ In 1867, John Alexander Jameson’s treatise on the Constitutional Convention asserted that “wholly unofficial” gatherings and “spontaneous assemblies” were protected by the right of peaceable assembly.³¹

The first ordinances to require advance permission to gather in public were passed in the late nineteenth century to suppress the Salvation Army.³² These laws were almost uniformly declared void by state supreme courts.³³ Only the Supreme Judicial Court of Massachusetts held otherwise.³⁴ Outside Massachusetts, state court judges routinely displayed great tolerance for disruptive crowds, absent violence. In 1889, an Illinois appellate court emphasized that “the law allows great latitude to public demonstrations, whether religious, political or social, and it is against the genius of our institutions to resort to repressive measures . . . to encroach on [such] fundamental rights.”³⁵

Early Supreme Court Precedent

The U.S. Supreme Court addressed the assembly right for the first time in United States v. Cruikshank (1875).³⁶ This case, which was brought under the Privileges and Immunities Clause of the Fourteenth Amendment, acknowledged the English origins of the right but held that the privilege extended only to assemblies “for the purpose of petitioning Congress . . . or for any thing else connected with the powers or the duties of the national government.”³⁷ A decade later, another privileges and immunities case, Presser v. Illinois (1886), suggested that assemblies were protected only when “the purpose of the assembly was to petition the government for a redress of grievances.”³⁸ Presser marks the only time that the Court expressly limited the right of assembly in this way.

In Davis v. Massachusetts (1897), the Court turned to the question of where Americans were entitled to assemble. In this case, a Massachusetts law required a permit to give a public address on the Boston Common, a public park.³⁹ The Massachusetts Supreme Judicial Court upheld this statute, finding that the legislature’s control of its property is identical to that of a private actor. Therefore, the court found, the legislature may “absolutely or conditionally . . . forbid public speaking in a highway or public park” without infringing on any person’s constitutional rights. The U.S. Supreme Court did not discuss the right of assembly, but rather accepted the lower court’s position.⁴⁰ Here, the Supreme Court accepted the outlying position of Massachusetts’s high court without directly analyzing the First Amendment, which at the time did not constrain Massachusetts.

Indeed, as late as 1899, John Randolph Tucker observed that the First Amendment right of assembly “has not been the subject of adjudication.”⁴¹ That lack of precedent would, however, change after De Jonge v. Oregon (1937) incorporated the assembly right against the states.⁴² Two years later, the Supreme Court decided Hague v. Committee for Industrial Organization (1939).⁴³ For the first time, the Court asserted explicitly that “the right peaceably to assemble and to discuss . . . and to communicate . . . whether orally or in writing, is a privilege inherent in citizenship of the United States.”⁴⁴ Importantly, the Hague Court distanced itself from the reasoning in Davis, asserting that “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly.”⁴⁵ Nevertheless, Hague implicitly sanctioned an important limit to the right of assembly on the public streets: It could be “regulated in the interest of all; and must be exercised . . . in consonance with peace and good order.”⁴⁶ This principle was subsequently formalized in Cox v. New Hampshire (1941), which held that the government could require a permit for an assembly as long as the law treated all viewpoints equally.⁴⁷ The final case from this period, Thomas v. Collins (1945), held that the right of assembly guarded “not solely religious or political” causes, but also “secular causes.”⁴⁸

Modern Supreme Court Precedent

Since the Warren Court, the federal right of peaceable assembly has been subsumed into a right of free expression. The Court has conflated the rights of peaceable assembly, speech, and association into a single speech right.

Part of the impetus for the neglect of the right of assembly was the Court’s recognition of a non-textual right of association in NAACP v. Alabama ex rel. Patterson (1958), which held that the state could not compel a civil rights organization to disclose its membership list.⁴⁹ The Court could have resolved the case under the freedom of assembly since both De Jonge and Thomas recognized the close nexus between the freedoms of association and assembly. Instead, Patterson recognized a right of expressive association as an extension of the freedom of speech. The Court declared it “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”⁵⁰

Roberts v. United States Jaycees (1984) further split this right of association into two aspects.⁵¹ One line of decisions protect “intimate association” as “a fundamental element of personal liberty.”⁵² Another set of decisions guard “expressive association,” defined as “a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion.”⁵³ Professor John Inazu has criticized these decisions on originalist grounds, contending that the right of peaceful assembly, properly construed, covers not just a gathering, but also the group that precedes the gathering.⁵⁴ Inazu further maintains that failure to envision protection through the right of assembly has diminished protection.⁵⁵ Inazu pointed to Christian Legal Society v. Martinez (2010), which held that a public university could force a student organization to open eligibility to all students as a condition of official recognition and access to funding.⁵⁶

There are hints that the Court may revive the Assembly Clause. Americans for Prosperity Foundation v. Bonta (2021) declared unconstitutional California’s extensive disclosure requirement for registered charitable organizations as a violation of the freedom of association. Justice Clarence Thomas’s brief concurrence speculated that “[t]he text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously.”⁵⁷

1. United States v. Cruikshank, 92 U.S. 542, 551 (1875). ↩︎
2. Kenneth Pickthorn, Some Historical Principles of the Constitution 120 (1925). ↩︎
3. Robin Handley, Public Order, Petitioning and Freedom of Assembly, 7 J. Legal Hist. 123 (1986) (citing W.S. Holdsworth, A History of English Law x, 700–01 (2d ed. 1937)). ↩︎
4. Frederic Jesup Stimson, Popular Law-Making: A Study of the Origin History, and Present Tendencies of Law-Making by Statute 284 (1911). ↩︎
5. John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 24–25 (2012). ↩︎
6. Pa. Const. of 1776, ch. I, § XVI; Mass. Const. of 1780, art. XIX; N.C. Const. of 1776, art. XVIII, N.H. Const. of 1784, art. XXXII; Vt. Const. of 1777, art. XVIII. ↩︎
7. Nikolas Bowie, The Constitutional Right of Self Government, 130 Yale L. J. 1652, 1661, 1695–1713 (2021). ↩︎
8. Storing 2.8.86. ↩︎
9. Id. at 2.7.55. ↩︎
10. Bernard Schwartz, II The Bill of Rights: A Documentary History 842, 913, 968 (1971). ↩︎
11. Id. at 1026; 1 Annals of Cong. 451 (1789) ↩︎
12. 1 Annals of Cong. 759 (1789). ↩︎
13. Schwartz, supra at 1050. ↩︎
14. 1 Annals of Cong. 759 (1789). ↩︎
15. Id. at 760. ↩︎
16. Id. at 761. ↩︎
17. Inazu, supra at 25; Michael W. McConnell, Freedom by Association, 225 First Things 39–44 (2012). ↩︎
18. Jason Mazzone, Freedom’s Associations, 77 Wash. L. Rev. 639, 733–742 (2002). ↩︎
19. Id. at 737, 742–43. ↩︎
20. Id. ↩︎
21. An act for the punishment of certain crimes against the United States, 1 Stat. 596–97 (July 14, 1798). ↩︎
22. Inazu, supra at 26–29; Simon P. Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic (1997). ↩︎
23. Leon Whipple, Our Ancient Liberties: The Story of the Origin and Meaning of Civil and Religious Liberty in the United States 104 (1927). ↩︎
24. Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, 16 U. Pa. J. Const. L. 949 (2014). ↩︎
25. Riots, Routs, and Unlawful Assemblies, 3 Am. L. Mag. 350, 357 (1844). ↩︎
26. A. O. Wright, An Exposition of the Constitution of the State of Wisconsin § IV (1888). ↩︎
27. Id. ↩︎
28. 2 John Randolph Tucker, The Constitution of the United States § 326 (Henry St. George Tucker ed., 1899) (emphasis added). ↩︎
29. Tabatha Abu El-Haj, Neglected Right of Assembly, 56 UCLA L. Rev. 543 (2009). ↩︎
30. McConnell, supra at 41. ↩︎
31. John Alexander Jameson, The Constitutional Convention: Its History, Powers, and Modes of Proceeding (2d ed. 1867). ↩︎
32. Abu El-Haj, All Assemble, supra at 982. ↩︎
33. Anderson v. City of Wellington, 19 P. 719 (Kan. 1888). ↩︎
34. Commonwealth v. Abrahams, 30 N.E. 79 (Mass. 1892). ↩︎
35. Trotter v. City of Chi., 33 Ill. App. 206, 208 (Ill. App. Ct. 1889), aff’d, 26 N.E. 359 (Ill. 1891). ↩︎
36. 92 U.S. 542 (1875). ↩︎
37. Id. at 552. ↩︎
38. Presser v. Illinois, 116 U.S. 252, 26 (1886). ↩︎
39. 167 U.S. 43 (1897). ↩︎
40. Id. at 47. ↩︎
41. Tucker, supra at § 326. ↩︎
42. 299 U.S. 353 (1937). ↩︎
43. 307 U.S. 496 (1939). ↩︎
44. Id. at 512. ↩︎
45. Id. at 515. ↩︎
46. Id. at 516. ↩︎
47. 312 U.S. 569 (1941). ↩︎
48. 323 U.S. 516, 531 (1945). ↩︎
49. 357 U.S. 449 (1958). ↩︎
50. Id. at 460. ↩︎
51. 468 U.S. 609, 617–618 (1984). ↩︎
52. Id. at 618. ↩︎
53. Id. ↩︎
54. Inazu, supra at 77–96, 118–41. ↩︎
55. Id. at 144–49. ↩︎
56. 561 U.S. 661 (2010). ↩︎
57. 594 U.S. 595, 619–620 (2021) (Thomas, J., concurring). ↩︎