The Right of Assembly in our Democratic Experiment

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(00:03):
I want to start as we get into the right assembly just by acknowledging the reality of the difference that we have in our world. We know, and you know that this difference feels maybe as sharp as it’s ever been in our lifetimes. Some of you have experienced this with matters and debates over religion and politics devolving into name calling and shouting matches. You’ve sensed it doom scrolling. You maybe even experienced it with family members in awkward conversations or awkward silences, and it can all feel overwhelming and exhausting. It might tempt you to think that disagreement itself is the problem, but I want to suggest that our disagreement is actually a sign of our health because it means more honesty about the differences that we actually have and also it’s a result of allowing more voices and perspectives into the conversation. The better question and the one that matters for our lives together is whether and how we can learn to disagree.
(01:04):
Well, and I want to suggest that part of the answer to this question comes from the long ignored right of assembly, which is enshrined in our constitution, in part of our country’s history. It serves as a bedrock to supporting our democracy despite our disagreements, the first amendment’s right to assemble, and specifically the guarantee of the right of the people peaceably to assemble long, ignored, long forgotten in our history. But if we are to sustain or perhaps reclaim a healthy democracy, we’re going to have to figure out how to learn across our differences without tearing each other apart and we can strengthen the right of assembly in our efforts to do so. Assembly is the only right in the First Amendment that cannot be exercised alone. Look at those other rights. You can speak by yourself. You can publish a podcast and be the press in some religions.
(02:02):
You can worship alone, you can even petition the government by yourself. You cannot assemble alone. Assembly requires at least two people, and that reality points to something deeply human in our lives that we are formed in our identities and our beliefs through groups, the groups in which we participate and live, families, schools, churches, sports teams, unions, clubs. These groups shape our beliefs and how we see the world and the right of assembly ensures that we can do that on our own terms. The founders were well aware of the importance of assembly. They saw it in colonial town meetings, in church gatherings and political clubs, and importantly in pubs and taverns where a lot of the political work actually happens. They knew that assembly could be disruptive, destabilizing, but they also knew that without the ability to gather ordinary people had no way to resist government overreach.
(03:04):
This is the significance of the right of assembly. But before we do a deep dive into its history and meaning, I want to spend some time want you to spend some time talking with people around you about what it means to you personally and maybe the ways that you’ve encountered assembly. Maybe you’ve been part of a gathering or a protest in the last couple of years. So I’ve got a couple of discussion questions. You’re going to break up in groups of, I don’t know, four or five and spend about 10 minutes with each other on these questions. What do you know about assembly before this class? Hopefully you’ve learned a bit more in the readings up to this class and how is your preexisting understanding different from what you read? If you’ve taken part in a protest, maybe share a bit briefly about what that was like and then how do you think about assembly in terms of the groups that have shaped this country’s history and why do you think it’s important? So see how far you can get. Take about 10 minutes and then we’ll reconvene and talk through some of the historical background.
(04:04):
Let’s gather back. We’re going to do a crash course of the history of assembly and then what I’d like to take us is to end on a more contemporary and closer to home example for us to think through. But let’s start with the Bill of Rights and two points to mention about the text of the assembly clause. And a lot of this is going to draw from the reading for the class today. One point is as the various states were proposing versions and language for the First Amendment among those versions, some of them said Assembly should only be for the purposes of the common good. And as the House of Representatives started debating that, they said, wait a minute, if assembly is only for the common good as defined by the majority, then that right basically means nothing. So they deliberately scrapped the language for the common good.
(04:48):
It’s not in the First Amendment, that’s important. Second, the text, if you look carefully at it, does not limit assembly to the purposes of petitioning the government. The right of assembly and the right of petition are two different rights, but for a lot of our country’s history, a lot of very smart people, including Supreme Court justices have completed them. So it’s important to see assembly on its own terms. If assembly were only for purposes of petitioning the government, it would be a very narrow right, you would’ve to declare front that the reason for gathering is to petition. And of course, as we know, as you’ve just discussed, we have assemblies in all kinds of other parts of life. The first real test of the assembly clause and the right to assemble came in the early 1790s when democratic Republican societies organized an opposition to the Washington administration.
(05:38):
So they were political in nature. They usually met monthly, sometimes more frequently, and they bothered President Washington so much that after the whiskey rebellion he saw an opportunity to take them out in his words, to annihilate them, and he took aim at them in his 1794 address to Congress calling them associations of men and self-created societies all meant as insults that had fostered the violent rebellion. The Senate censored the societies and they largely disappeared shortly thereafter. So the first instance of people publicly declaring a right to assemble was rather short-lived. Still, the idea to hold that assembly meant something In early America in the Antebellum era, you have several state court decisions focused specifically on religious groups who wanted to exclude unwanted members and say, we want to meet on our own terms. And state courts upheld that.
(06:37):
In other cases you had white citizens in southern states recognizing that assembly would be powerful to black Americans and deliberately restricting it in petitions in other laws. One example, an 1820 petition from South Carolina that prohibited churches organized for the exclusive worship of colored people. They knew that when you let people assemble, when you let preachers speak and organize, that political power was not far behind as southern states increase their restrictions on assembly. For African-Americans, abolitionists in the north expanded their reliance on the right of assembly. And because many abolitionists were women, freedom of assembly was as one scholar has noted, indelibly linked with the women’s rights movement from its genesis in the abolition movement, female abolitionists and suffragists organized their efforts around a particular form of assembly that they called the convention. These conventions often met with harsh resistance. One striking example is a gathering of the Boston female anti-slavery society in 1835, which invited William Lloyd Garrison and the British abolitionist George Thompson to speak at its annual meeting, there was a large crowd that ended in a riot and Garrison barely escaped with his life.
(08:03):
In 1866, politicians began appealing to assembly more frequently alongside religion, speech, and press. After Republicans in Louisiana called a constitutional convention in New Orleans for the purpose of giving African-Americans the right to vote, Democrats convened a grand jury that indicted every member of the convention. The commanding general of the federal troops in New Orleans refused to execute the arrests writing to the mayor. If these persons assemble, as you say is intended, it will be, I presume, in virtual of the universally conceited right of all loyal citizens to meet peaceably and discuss freely questions concerning their civil governments. When the convention met on July 30th, 1866, the police and white citizens fired into the building and shot loyalists as they emerged killing 40 of the delegates. Seven years later, the infamous Colfax massacre saw even worse violence against African-Americans exercising their political rights in what journalists Charles Lane has called the day that freedom died. And so the efforts to assemble and recognize this right, particularly in the reconstruction south met with harsh, violent and deadly resistance. And despite these setbacks, you still had the law recognizing a greater sense of assembly around the country. So in 1877, the Supreme Court of New Hampshire observed that no society, no private society can be compelled to admit anyone against its will. This was inherent in any way of voluntary association. With the right of assembly then came the right to exclude unwanted members.
(09:51):
Legal commentators in state courts also applied the right of assembly to a broad array of gatherings. In one treatise from 1884, Albert Wright said Any number of people may come together in any sort of societies, religious, social, or political, and 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. During the progressive era, a thicker sense of assembly emerged in the practices of three political movements, a revitalized women’s movement, a surge in political activity among African-Americans, and an increasingly active labor movement. Within the women’s movement, various women’s clubs began holding open air campaigns to draw attention to their cause. The core of Assembly for Women came through local networking and personal connections. These assemblies were not confined to traditional meetings, but they included alls swimming races, potato sack races, baby shows, pageants and tee times. Just as the Democratic Republican society said earlier, refuse to limit their gatherings to formal political meetings, the women’s movement capitalized on an expanded conception of what it mean, what it meant to have public political life.
(11:27):
In a similar era, the NAACP emerged following brutal race riots in Atlanta in 1906 in Springfield, Illinois in 1908. And these groups, early efforts aided membership drives and recruited individual members at the same time. Marcus Garvey pictured here started his own organization, which drew tens of thousands of members, many of whom paraded through Harlem in a grand spectacle in 1920 acquired her, but even more powerful version of assembly also took shape, and the writers who comprised, wrote about and lived the Harlem Renaissance. While both suffragists and African-Americans built on ideas of assembly in the progressive era, the most frequent articulations in culture and in law came from the increasingly vocal labor movements. Widespread labor unrest had emerged with the increase in industrialization and immigration at the end of the 19th century, but more direct appeals to the freedom of assembly began with the industrial workers of the world, sometimes nicknamed the Wobblies who emerged out of a conglomerate of labor interest, dissatisfied with existing reform efforts. Following the first World War, progressive reliance on the right of assembly then confronted an increasing roadblock from the emerging anti-communist hysteria.
(12:53):
The federal government constrained directly the right of assembly through legislation including the Espionage Act of 1917, the Immigration Act of 1918 and the infamous Palmer raids out of the Justice Department in 1920. And then there was pushback from the courts. The importance of assembly construed not just as a right to attend a meeting, but a right to form and participate in groups is strikingly evident and one of the most famous decisions from the Supreme Court, one that some of you in here have read with Professor Vale and me. This is Whitney against California. Anita Whitney had appealed her conviction under a California law, having served as a delegate of the communist Labor party of California, and on addressing her appeal, justice Brandeis and concurrence penned one of the most well-known phrases in American jurisprudence. Here it is. Those who won our independence believed that freedom to think as you will and to speak as you think our means indispensable to the discovery and spread of political truth, that without free speech and assembly discussion would be futile. That with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine, that the greatest menace of freedom is an inert people, that public discussion is a political duty and that this should be a fundamental principle of American governments.
(14:23):
Brande’s link between speech and assembly suggests two important connections. First, it recognizes that a group’s expression includes not only the spoken words of those assembled, but also the expressive message inherent in their very active gathering as who they are. And second, it emphasizes that speech and assembly extend across time preceding the expressive moment of protest or disruption to guard against prior restraints that would prevent the movement from ever occurring. Just as actual speech is not a necessary condition for protecting speech, physical presence is not a necessary condition for protecting assembly. Rhetoric across the political spectrum during the mid 1930s grew alongside increased appeals to assembly in the labor context. And you had a series of Supreme Court decisions emerging out of the 1930s that started to anchor this right more formally. In 1937, the Supreme Court recognized that it applied to state as well as federal governments in DeJong against Oregon.
(15:33):
Later that year, the court said that state power to a bridge assembly is the exception rather than the rule. And two years later you can see the New York Times heralding. The famous decision in Hagg and by this time long forgotten assembly was also core to the public consciousness. It was one of the fundamental four freedoms celebrated around the country alongside religion, speech, and press at the 1939 World’s Fair in New York. And you can see part of that illustrated here, there were statutes erected, including a statute to the right of assembly. There were tributes and speeches made and lots of celebrations that lasted right up until President Roosevelt’s speech writers introduced a different four freedoms that quickly overtook the old. So we no longer think of assembly as one of the four freedoms, but back then everybody knew it. As such, in later years, public and legal invocations to assembly began to wane.
(16:33):
And by the late 1960s, the only cases of assembly coming before the court were those overturning convictions of African-Americans who had participated in peaceful civil rights demonstrations in political discourse. Martin Luther King appealed to assembly in his letter from a Birmingham jail. He was one of the last national figures to do so. So the puzzle or the question that I have in thinking through the right of assembly is if it is so historically important, if it mattered so much to ordinary and elite Americans for so many years, why do we so rarely talk about it? Today we talk about sometimes protests, but we don’t often anchor it in assembly specifically. And in fact, in national polling over the last decade or so, most Americans can’t even name the right of assembly when asked to list the rights of the First Amendment. So what has contributed to its demise and why are we in the place that we are? I want to suggest two dimensions to assembly that have been compromised, the assembly itself and the act of assembly. Let’s start with the assembly or the group.
(17:46):
Part of the confusion around assembly today owes to the emergence of the right of association, which is found nowhere in the actual constitution. In the late 1950s and early 1960s, the Supreme Court took dozens of cases raising this newly recognized right. They came from two groups, the NAACP and the Communist Party, and you can imagine with a little bit of history, which group won and which group lost every single case. The court telegraphed its sympathies and the results oriented nature of its opinions with the NAACP prevailing almost every time, and the communist party losing almost every time until one case brought the two together and the court wasn’t quite sure what to do. These results may have led to preferred political outcomes, but they failed to develop any coherent doctrine around this new right of association. The second constitutional development that has led to the diminishment of assembly is the act of assembly and the gathering of the protest.
(18:50):
Modern Supreme Court law addresses the act of gathering almost entirely through free speech law. This began in the 1980s when the court swept what had been assembly doctrine into free speech law and introduce what it has called time, place, and manner restrictions. Today, courts and litigators routinely invoke the free speech clause and not the assembly clause when they’re addressing protest situations. The analysis on time, place and manner presumes that a regulation or a restriction on assembly is legitimate as long as it satisfies a formulaic threshold of content neutrality. In theory, this is supposed to protect against government from targeting speech or expression that it doesn’t like, but it doesn’t always happen that way. So think through with me these three attempts at time, place, and manner restrictions. If you have time restrictions, even if they’re content neutral, they can still sever the link between the message and the moment. So think of a content neutral time restriction. It applies to everything, all forms of speech, all perspectives. It’s content neutral, but it closes public sidewalks outside of prisons on the days of executions or outside of legislative buildings on the days of important votes or outside of courthouses on the days that decisions are announced.
(20:17):
Content neutral place restrictions can be similarly distorting as law Professor Timothy Zick has noted, speakers like abortion clinic, sidewalk counselors, petition gatherers, solicitors and beggars seek the critical expressive benefits of proximity and immediacy that inherit such places. And instead, individuals who wish to engage in speech and assembly are too often displaced by a variety of regulatory mechanisms, including the construction of so-called free speech zones. My favorite example here locally, we used to host the presidential debates at Wash U and they’re, as you might imagine, always protestors who want to be at the debates and the local authorities decided we’re going to have a safe free speech zone for you. It’s three miles away and we’ve going to put a big fence around it to protect you. So you can imagine that that content neutral place restriction actually affects the ability of people to message in the protest.
(21:16):
And then finally, content neutral manner restrictions can have a similar effect of draining the emotive content that’s intended by protestors. So think of a restriction on what you wear or the kinds of signs that you can have that might cut against some of the most effective forms of communication by labor protestors or others. In some cases too, the restriction can just be too expensive for certain kinds of protestors. These kinds of regulations, the example I’ve given can be way too easily justified apart from expressive content. In many cases you can have a curfew, a zoning restriction or a buffer that can come up with some form of content neutrality, but the nonetheless effects and curtail speech and assembly and the right of assembly in the First Amendment ought to require more despite the challenges in the law, and they are all over the law. I sometimes tell people, I don’t really care what your issue is, tell me the cause that you care about, and I can show you someplace in this country where the cause that you care about is being restricted illegally by some local government that curtails protest and speech more than it should.
(22:32):
And of course it’s happening also around the world. Just last month, the Iranian government cracked down on anti-government protests and killed an estimated 12,000 people shutting down the internet and all outside communication. Many of us have missed this completely, some of us because we’ve seen reports of our own government shooting and killing protesters in Minneapolis, and these in turn have started their own demonstrations and counter demonstrations around the country. Both sides of the political aisle and recent administrations have sought to restrict funding to student groups that are disfavored on college campuses. This might affect some of you personally during COVID state and local officials restricted gatherings of all kinds, leading to dozens of lawsuits claiming the right of assembly. My favorite example here was a federal district court that spent several pages analyzing the assembly claim and then said, of course, the assembly claim is not recognized today.
(23:35):
Azi, which was the exact opposite of the point of my life’s work, not memorialized in the federal courts. This also happens frequently in the name of national security where groups see their ability to effectively assemble stripped away. The Obama administration curtailed the freedom of citizens to assemble and associate with certain overseas groups, including attorneys who would desire to represent them in court. The Trump administration has canceled union contracts and removed collective bargaining rights for federal employees and everything from the weather Service to Veterans Affairs. Under executive power of administrations from both parties, national security has become a nearly unchecked power to limit the people’s right of assembly.
(24:25):
So what does this mean for us here at Wash U in St. Louis? Let’s turn to a case study a little closer to home. Some of you were here for this in the spring of 2024 where some Wash U students organized a number of pro-Palestine protests. I’m going to set up descriptively. What happened, and then we’re going to break again to talk about this a little bit. The main protests took place over the course of two weeks with varying levels of disruption. On April 13th, protestors entered an event in Graham Chapel. I think this was a kind of admitted students session, and they interrupted a welcome speech, pushed the speaker off the stage and started chanting with a big banner. A group of them who refused to leave were eventually arrested for violating obvious WashU ordinances. Then a week later on April 20th, protesters gathered again on campus and began to put up tents in violation of a Washington policy against encampments.
(25:25):
They were told to leave and eventually did without arrests. And finally, the big one, which happened on April 27th, 400 protestors. At one point, someone in the university declared this an unlawful assembly. I’ve written to a couple people to say, we don’t have the authority to declare an unlawful assembly, but that might be beside the point. Eventually the protesters left. They moved to Tisch Park and began setting up tents. And after a number of warnings, a hundred people were arrested. Most of those arrested were not affiliated with Wash U, but 23 students, five faculty and two staff were arrested, and there was pretty extensive pushback from students and faculty after the police were sent. In the following year, university trustees at Wash U established a committee to investigate these events and subsequently published a report detailing the protests and suggesting recommendations. The report noticed that or noted that many of the protestors were not Wash U affiliated and ultimately praised the university for handling the situation as well as it could.
(26:32):
On the other hand, it noted that people felt that their speech on campus was chilled and that campus somehow feels different even a year later after these protests, the report said Wash U did not have experience with what happened in April. Large groups of protestors, the most vocal of whom were not affiliated, who sought to disrupt activities, entered without permission, refused to obey lawful direction and sought to advance their cause by intentionally subjecting them to arrest overburdening woo PD. Now I’ll say I actually went and observed the April 27th protester. Since this is kind of what I do, I wasn’t there in any capacity other than as a scholar interested. And at one point as it was getting larger, I was sort of on the periphery and someone who was an official was u person of some sort came up to me and said, everyone needs to move back a couple hundred feet now.
(27:24):
And so I said to her, I was being fairly polite, but I said, I’m just wondering, is this a request or an order because I’d kind of like to stay here. And she said, oh, what’s a request? And I said, well, great. Well, what happens if I don’t follow the request? She said, oh, we’ll bring the state police over to have a conversation with you. So I said at that point, I don’t think this is a request, but I will comply as a university employee. Here’s the finding from the committee. WashU is a private university, not a public institution or public forum. It is not required to uphold the full range of First Amendment protections. However, the university is committed to First Amendment principles. Freedom of expression is a qualified right to speak one’s mind through words and deeds. And so I want you to think about and where I want you to go at this as you talk to your neighbors and seatmates about this is not so much what you think about the underlying political issues. That’s a different class, a different discussion, but more about this hard question of how much expressive protest right do you think you should be allowed to have here as a member of the WashU community and in the other direction, what kinds of interests should the university administration be required to protect and uphold? Should they being Wash U, they us should be required to abide by First Amendment principles? Why or why not? What are our responsibilities and how might you revise why she use policies on student protests?
(28:58):
I do want to first though turn to why Assembly matters today and how we can continue to think about it. I want you to think of assembly as first of all, a very local practice. It’s going to show up in your lives in the clubs and groups that you join, the neighbors that you meet and the conversations you hold. And if you do it right, it’s going to be messy because real pluralism, real difference is messy. It’s also something that you have to practice and it’s going to be imperfect and you’re going to make mistakes. It’s going to set you up for conversations that aren’t always easy and that for relationships that aren’t always clean and nice, it’s going to sometimes be about debates and discussion and other times be about plotting and planning. But how you practice assembly here is going to matter. You’ve got a lot of time.
(29:48):
I know it doesn’t always feel that way, but you’ve got a lot of time proximate to other people to work on this and it will shape the habits that you’ll carry for the rest of your life. Are you going to make room for difference and listen to voices you dislike? Will you protect the groups of those with whom you disagree? Knowing that tomorrow your own group might be the one needing protection? Civil liberties are ultimately for losers. And by that I mean you don’t need them if you win at the political process, if you win, you get your laws or you get the exceptions you want, it’s when you lose that you most need civil liberties and a democratic government must protect the groups and spaces who can continue and pursue their own visions of the common good against that majority common good. I know that in the historical part of today, I’ve covered a lot of ground.
(30:44):
It’s not what I usually like to do in that broad of a sweep. It’s mostly been at the level of history and legal doctrine. But I want to close before we get to questions with two more personal reflections. First, I have drawn most of the historical content out of the chapter that I assigned to you, which is from my book, Liberty’s Refuge, the Forgotten Freedom of Assembly. And I want to mention that the book is free. It’s online as a free PDF thanks to Yale Press for letting me publish it under a creative commons license. And I’ll say that one of the most rewarding aspects of my career as a scholar has come because this book is free. In the 14 years since publishing it, I’ve heard from other scholars and dissidents and activists around the world who’ve benefited from the book and its arguments who live in countries that do not yet recognize a right of assembly.
(31:39):
Second, I want to call your attention to the dedication of this book. I dedicated it to my grandfather’s t and bird. Grandpa Bird was a captain in the US army fighting the Germans, and he was eventually shot and captured by them. And Grandpa Tai was imprisoned in California by the same government for which Grandpa Bird fought. T had graduated with an engineering degree from Berkeley and settled with his family in Santa Monica, a second generation Japanese-American pursuing the American dream. And with imprisonment, he lost everything, his home, his possessions, his job, his pride. As I wrote in the dedication to this book in 1945, as the US Supreme Court issued one of its most important opinions on the freedom of assembly Byrd, Curtis set captive in a Nazi prisoner of war camp and Tzu stood behind the barbed wire of tulle lake relocation camp. We work out the theory and practice of assembly between the polls of abuse to which they testify when it comes to our civil liberties.
(32:46):
We will do well to remember that they emerge from the lives and sacrifices of people who’ve gone before us who’ve stood against injustice and oppression. Sometimes from the very government that now guarantees those liberties. We should not forget that the key enablers of the Japanese internment were Earl Warren and Franklin Roosevelt. Negotiating conflicts through politics is going to produce winners and losers, those elected to office, and those defeated those who benefit from policies and those who suffer under them. And that is going to include all of us at some point in our lives, but no matter who prevails in the political process, we must protect the groups and spaces where people can continue to pursue their own visions of the good, the true and the beautiful. This is not a cost-free commitment, the right to protest risk, disruption and instability. It even allows for the possibility of political change, the ability to form and maintain groups of people’s own.
(33:49):
Choosing means some groups will exclude people who don’t share their beliefs and values, including people who you care about tolerating assemblies that do not advance majoritarian understandings of the common good means tolerating expression and practices that we may not like. This commitment to assembly is not without limits. There are well established laws through which local authorities can restrict those assemblies that threaten imminent incitement to lawbreaking and violence. But those outer limits should leave with us a lot of breathing space for difference and dissent. That breathing space will only be secured with bipartisan and cross ideological support for the right of peaceable assembly, regardless of politics or party as we work to live together in spite of our differences. Thanks for listening today, and I look forward to your questions.
(34:49):
The first comment we had was like there is a obligation for the university to uphold First Amendment rights and then what is it protecting by inhibiting speech and assembly? And the comment made by the people I was chatting with was, you have to first protect the purpose of what we’re doing here, which is an education. So I guess that’s the justification for it. And I pushed back and said, the people in power are the ones who are deciding what is the purpose that we are protecting. And that changes, there’s a different interest there depending on who’s in power. And then the pushback to that, which I thought was interesting is because this is a private institution, is there some sort of moral contract that is made that does not exist at a public institution that you must first be here for the learning or the pursuit of truth kind of thing.
(35:58):
That’s great. I love all of that. And I would say if the premise is correct that we can name the purpose of the university, that will tell us a lot. I’m not sure we can, I mean maybe on your own time you can think through what is the purpose of Washington University? I’m not sure we can name it. If you could, then you could very credibly name the constraints that you have around things like speech and expression. This is actually an important point. Every society and every institution is going to set boundaries. There’s no such thing as a completely open society, right? We’re not going to have the local chapter of Al-Qaeda or the cult of human sacrifice. So we’re going to say there are limits to what we do, and those limits are ultimately set by what our purpose is. But if we can’t name our purpose, it’s very hard to name what those limits are.
(36:46):
So in the absence of purpose, a lot of what’s happened in the public context is to say, we will follow the First Amendment. And the first amendment ends up meaning lots of disruption, lots of inefficiency, lots of discomfort. And so a private institution like Washington University could say, fine, we’re going to do something different, but then we need the why. What is the purpose of this unique place that makes that different? Because there are plenty of public educational institutions that still have to follow the First Amendment and they say, we care about institutions, we care about education, and we follow the First Amendment. And Wash U could say, we do too. It doesn’t have to. It could say, alternatively, we don’t, but we do something else. But then I want to know what something else is. And that’s not always clear to me as I spend my time around campus here. Great question though. Great comment.
(37:36):
We were wondering if it’s more problematic for everyone to have full First Amendment rights or for no one to have any at all.
(37:45):
I like that. To me, that’s an easy call. Everyone needs full first Amendment rights if you shut them down, very, very bad things happen. And I think history shows us that quite evidently the less speech, the less civil liberties you have, the more danger you have, not just to live freely, but even to survive. And I’ve been, I’m trying to think if I should name these places. I’ve been to some places that aren’t the US and sometimes they’ll say, Hey, we would love for you to talk about the First Amendment, just don’t talk about X. Right? The one off topic issue that would really disturb folks there. And I think once you start to say that when you diminish the possibilities, you lay the groundwork for what eventually could be very, very bad totalitarian tendencies. Now there is a cost with the full First Amendment, a huge cost, especially recognizing a background culture that is not baseline equitable, where there are massive power abuses and differentials. And so when you say everyone has the right to speak, some voices will speak louder than others with more money, with more power, some of it illegitimate, and that’s a problem too. But I will take door number one any day over the alternative.
(39:01):
I think one of the things your question raises is in some ways the absence of those rights makes things very efficient. It’s messy and inefficient to exercise those rights. And so you have to be willing as a society to be messy, inefficient, not fast moving in some cases because everybody can have their say and everybody can have this right of assembly and speech and so forth. I have a question for you that goes back to the Constitution and the founding of these rights. There are these distinct rights set out and each one has its own legal doctrine. And one of the things I take from your lecture today is that one of the things we see going on is that the right of assembly is being now subsumed and lost in part because it’s just being thought of as the right of free speech. It’s not thought of as its own separate, right? Can you spell that out a little bit? What gets lost? I mean, even now you’re just talking about speech in your last answer, but actually we’re talking about assembly. So what’s the difference between free speech and free assembly? Why is it important to maintain that difference? And going back to the 17 hundreds, why do you think they saw those things as distinct?
(40:15):
Yeah, great question. And part of the original debates in the first Congress were, do we even need a right of assembly given that we already have these other rights like speech and religion? And the framer said, absolutely we do because it is a distinctive that offers distinctive protections, but more than protections also a kind of, I want to say almost a public imagination of what it is that we do together as a people. So when you think of speech and speech has changed a lot, the meaning of the word speech means something different today than it did in 1791. Who knew that burning a flag or dancing naked or all kinds of other things would be speech back then. But they are, and that’s fine. But when you add assembly to that, this takes us back to really the first part of today. There’s something uniquely important about the group, what the group is, how the group expresses itself, how the group forms and allows the formation of beliefs in individuals.
(41:12):
This is also why there’s a longstanding history between assembly and the free exercise of religion because it was historically, often the religious dissenting groups that could most oppose can challenge government power. So when you allow people to organize as groups and to say, think about the labor context too. If you’re just a single employee, good luck getting management to listen to you. But when you can come together and say, we’re doing this collectively right, or you’re the sole protester on the street, people can ignore you. But once you have a group of people, there’s a lot of power that comes with that. I don’t think any of that is captured either linguistically or doctrinally in what speech has become. And so I think part of the reason for assembly is to reinsert a kind of constitutional imagination for what the possibilities are in a democracy like ours.
(42:01):
Kind of two parts to this question. Number one, how do you think the red two assembly is changing within the modern day within right now, sort of context? And then number two, how do you think it might change in the future? Just like with the way we’re going, what do you think is the kind of trajectory that we’re on? I know that’s kind of a tough one, but I’m just curious. Curious.
(42:25):
That’s great. I’m going to answer your question. I’m going to hijack your question, but let me answer it first because it’s a great question. So two ways that there are distinctive unique modern applications of assembly. One is online. So the idea of virtual assembly and think of how powerful it is. The Air Springs probably the best example, but there are others where you can get online and almost instantly get a group of people together that would’ve taken you weeks to organize in a prior time. And so the idea of both spreading messages, but also organizing people physically in ways that begin online. And of course you can also have just all virtual, you can have point of service disruptions and all kinds of things you can just do virtually as a group and stay online. But I think it’s when the online facilitates the offline that you have the most powerful possibilities.
(43:13):
So that’s one in a domestic sense and maybe more bleakly, the convergence of First Amendment and Second Amendment doctrine is actually quite worrisome right now because you say once people are armed at some gatherings with Semiotic matic weapons, the whole nature of the thing can change. And you had people with weapons in the early days too, but they were just differently configured and thought of differently. So the intersection of the first and the Second Amendment feels important right now. But the other thing I want to say, and I’m actually going to pivot, not really hijack, but build upon or compliment the question that you asked, but where you started with these things take a long time. I think that’s, especially for this room, something really important to consider. So because of the work that I do, and I’ve been writing about assembly and protests for a long, long time, and I’ve had a steady stream of different kinds of protesters and activists from all kinds of causes who’ve come to my office to chat or to enlist legal help or whatever it is.
(44:13):
And I want to say something specifically to the students here, which is most of you in this room. What I love about having seen years of student activism is the energy and the passion that you all bring. And it makes sense because many of you’re coming into this new situation, which is far more diverse and far more open-ended than where you might’ve been. And there are all these things to think about, but you’re not going to be able to solve the world’s problems and the ones that you want to solve are going to take a very, very long time. So what I usually say to the activists and protest folks whom I love and whom I want to see succeed is also have the plan, right? The protest can be important, but sometimes it can also be a little performative, especially kind of the online protest stuff.
(45:03):
But if you really care about an issue, have a plan and have a 10 year plan so that you can actually affect change in the world about this thing you care about, that’s real social change. And that’s what movements are about. And also, by the way, that’s what Assembly allows because it allows these groups and institutions to form gradually and sustain. And without an institution, your life cycle of what you care about is going to last as long as you and then it’s going to be gone. So the reason people come together politically, and the reason they harness power through groups and institutions is for the sake of long-term change, but start now with that broader mindset, and it’s both broader and more focused in what you can do, and that’s how you kind of join in the process of the long slow march to the change that you care about, and then realize along the way that there are going to be people next to you fighting for exactly the opposite. And in a democracy, they might well be allowed to do that as well.
(45:57):
You mentioned at one point that at times various legal scholars have kind of combined the right to assembly with the petitioning the government part. And I’m just curious on what grounds have they chosen to interpret it that way, seeing as there’s the comma in between them? Right.
(46:16):
So if you were to, it’s a great question. I wish every justice on the Supreme Court had your attention to grammar. If you look carefully at the text of the First Amendment, it’s the right of the people peaceably to assemble and petition for address of grievances. That singular word, right, messes up the entire clause. So grammatically go back and just Google the first Amendment after this class grammatically, it doesn’t make sense. One of the reasons it doesn’t make sense is they’re cobbling together these different phrases and clauses from the proposals. Someone just made an error in the final drafting. But it is the case when you look at the record and when you see especially how assembly has been embodied by the people throughout the history of the country, it becomes fairly obvious that nobody thought it was assembly only for the purpose of petition.
(47:06):
Then comes along in 1890, maybe 1884, a Supreme Court decision that just misreads the text of the First Amendment. It’s astounding. I discovered this in graduate school. They just get it wrong. And they say the first Amendment is the right of assembly to petition the government and no one calls ’em on it. And then for about three or four decades of legal scholarship, everyone just cites that case and said, assembly is only for the purpose of petition. And then the labor movement comes along in the 1920s and says, wait a minute, assembly is far bigger than petitioning the government. It’s all the stuff we care about. So now you have a more expansive right that’s fighting with the newly defined text. And in recent years, I pointed, this is one of the major arguments that I made in this first book, Liberty’s Refuge. I pointed it out and a bunch of legal scholars said, oh, we hadn’t seen that before.
(47:56):
But he’s right. I mean, nobody has to date challenged my interpretation that assembly is sexually different than petition. And in recent years been some litigators at the Supreme Court that have been making this argument, and slowly some of the justices are paying attention. So there was a case out of California about three or four years ago when in the oral argument, three of the justices referenced a brief that was basically summarizing my work, and they asked the council is the right to assemble different than the right to petition? And I started getting texts from all around the country saying, finally, this is your day. And then when the opinion came out, no reference to that. So I’m still, I am not giving up hope, but it is just to me, an obvious historical doctrinal grammatical point that no one has yet remedied since the 1890s.
(48:48):
My question was just more about if you can just talk a little bit more and clarify what was the importance of Justice Brande’s speech for Whitney v California?
(49:01):
I mean, to be honest, as I was quoting it in real time, I thought, I don’t think I set this up very well, but I will say, so there are certain passages from certain justices that take on almost a larger than life significance. I mean, this is probably quoted in high school textbooks. So part of this significance is it becomes kind of the lore of our constitutional story and that he said it in this case, but it was a case where the stakes mattered. Anita Whitney was a very elite person. I think she was the niece of a Supreme Court justice, and she was facing this intense criminal prosecution just for gathering. And in the context of assembly, that particular case is usually treated today as a free speech case. But I like to point out to people, no, no, no, the text is talking about speech and assembly together.
(49:48):
So in some ways it anchors. And speaking of English, go read the whole concurrence. It’s kind of a beautiful, although not always sensical work of prose, and it has some really important lines about it, what it means to be part of a democracy and to take risks and to recognize the stakes that are on the other side of remembering the importance of civil liberties. There’s a line in that opinion where Brandeis says, men feared witches and burnt women. So the stakes are high. And part of his point then is, and it is our responsibility to make sure that that stuff doesn’t happen.
(50:33):
You mentioned that when they were drafting, they did cut out the common good reference, but they did leave in one qualifier, the peaceably. Has that played out in any way over the arguments over the assembly? Right.
(50:48):
So assembly, it’s an astute observation. Assembly is the only right that is modified by another word, and that word is peaceably. So now we have to figure out what does it mean to have a peaceable assembly? And this is not an easy question to answer. So under formal First Amendment doctrine, you can engage in words and actions that take you up to the moment of imminent incitement to lawbreaking. So that’s the formal answer. But what does that mean in practice on the ground? That’s a very hard answer to question or a hard question to answer. So I was, a few years ago, I was on a Missouri Commission that was advised in the US Civil Rights Commission, and it was mostly like a powerless group, but we did have subpoena power. So we convened a hearing and subpoenaed a bunch of police chiefs from Missouri, major city regional chiefs.
(51:35):
And we were asking them about, this is about the connections particularly between police and police and minority communities. This is around the time of Ferguson. And so I asked them, when do your officers declare an assembly to be unlawful? And their response down the line was, well, we allow for peaceable assembly. It’s just when it turns, not peaceable that we shut it down, which is great, but that tells me nothing. And so I pressed them and I said, well, you have been Missouri a criminal statute that defines unlawful assembly. So tell me what that means, and when you decide that it’s in play. And the answer was, well, as long as it’s peaceable, it’s okay. So can’t, the word peaceable is the start of the conversation, but not the end. And then we have to figure out really carefully what it means. It probably means allowing instability depending on how you negotiate with local officials.
(52:26):
It could mean sometimes nonviolent law breaking. You’ve got to be careful there, and you probably want advanced permission. But if you trespass on somebody’s property, does that warrant an unlawful assembly and arrest? Maybe, maybe not, depending on the circumstances. So there’s a lot of work to figure out what that peacefully means. One thing it can’t mean though, is whatever doesn’t disturb me. So when you look at some of the old statutes and these unlawful assembly laws have been on the books for 150, 200 years, and a lot of them will say, you can march or protest or gather in a community as long as you don’t disrupt the reasonable sense of peace of the average member of the community. That’s weird language. It means that what you protest in fluorescent might look different than what you protest in ladu. And that should cause problems for us about this sort of reasonableness standard. So the word peaceably is super important, not yet. It means we know some of what it means, and there’s still work to figure out about what the rest of it means.
(53:31):
That word reasonable shows up in so many laws as well. And I’ve been pushing Professor Nazi to write a book on what does reasonable mean? And in so many of these cases, that’s the qualifier, right? Reasonable. The qualifier. That’s the key.
(53:46):
If you go to law school, you’re going to spend a lot of time on reasonableness.
(53:48):
Yeah. I’m wondering if you could, there was one historical moment that you were talking about from the 1790s, these Democratic Republican groups that were gathering that Washington didn’t like and they didn’t like Washington. Can you say a bit? So we’ve talked in this class a little bit about the context of 1776 and how heroic Washington was. And I’ll mention briefly in my lecture at the end, that he gives up power. He doesn’t have to, so there’s people who want to crown him king, he’s so beloved right now. He just kind of offhandedly talking about these groups who are gathering, they don’t like him and he doesn’t like them, and he shuts ’em down. So can you say a bit more about that historical moment, those contexts, those assemblies, those groups?
(54:28):
Absolutely not with real historians in the room here. No. Look, the first thing you learn as a lawyer is not, now I won’t elaborate on that, but maybe the broader point, which I can, which is a total punt, is power does affect how people view things and threats to political power, even if you’re Washington, the good guy at the end of the day and the moment of a threat or a challenge to power disruption. And these societies were organized and they were starting something, and some of that went violent. And so there was reason, especially early on, to be concerned about what would happen. And I will yield the rest of my time on that to professor.
(55:08):
Yeah, on the peaceable thing too, I mean, one of the interesting things, and this might apply to those groups, is that the perception of a threat be it has to be an actual threat versus a perception of a threat or, so what I’m thinking about is when you gather a group together, it can feel violent to you. Just the sheer bulk of people can feel violent, but that of course doesn’t make it an peaceable assembly. That’s right. So there’s something built into assembly that makes it very interesting that the very idea of an assembly can feel like a violent threat to people, even when it’s peaceable.
(55:52):
For sure. And also, I haven’t yet said this, but there can be a fine line between assembly and conspiracy. We outlaw conspiracies. They’re very dangerous and bad, but who gets to decide whether this group of people is a free assembly or an illegal conspiracy? And that descriptive power can really matter. And building on your point, just as human beings, when we start to see those other people organizing, especially when they are not our people or don’t have our interests, we tend to see them as more disruptive or more risky or violent. There’s lots of social science data out there about how generous we are to our people. Of course, we’re the reasonable, peaceful citizens. It’s those people who are the disruptors and the agitators and who would take down democracy when in reality, pluralism is messy. And we’re all parts of groups that are trying to figure it out.
(56:46):
So key takeaway, plu pluralism is messy. You’ll also have noticed, and this is my transition to segue us out, we’ve transitioned a little from the historians of the group to other scholars. This is meant to be an interdisciplinary class in 1776. So I’m so grateful to have legal theory, legal doctrine, to think about some of the framing rights that came out of this moment as well. And please join me in thanking Professor Anazi.