Exploring the Constitution, Part 20: The First Amendment and Freedom of Assembly

The two previous installments of the series on the Constitution dealt with the First Amendment's guarantees of freedom of religion, speech, and the press. This column, the 20th installment of the series, will discuss the other freedom guaranteed by that amendment: the right to peaceable assembly. Let's repeat the relevant words here: "Congress shall make no law... abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [emphasis added].

Freedom of assembly was apparently not a hot topic around the time of the adoption of the Bill of Rights. I have been able to find little that the Framers or anyone else had to say about it. Obviously they considered the freedom to be important, or they wouldn't have included it among the rights protected by the First Amendment. Most likely there was such unanimity concerning this right that they felt no need to discuss it.

The temptation for a government to limit freedom of assembly could arise from either of two sources. An oppressive government would do whatever it could to make it difficult for people to organize in opposition to its policies. Breaking up gatherings of government opponents would be a natural part of such an effort. Petitioning for "redress of grievances" is inherent to politically oriented gatherings. Stifling this form of expression makes it easier to control public opinion and retain government power. This form of assembly is probably what the writers of the First Amendment had in mind to protect. It fits well with the other freedoms guaranteed in the same amendment.

Another motivation for limiting freedom of assembly is to preserve order and prevent crime. Even a government that respects liberty could be tempted by this reasoning. The city of Chicago had an ordinance allowing police to break up groups of young people on street corners, when in their judgment a gathering might be gang-related. Clearly the citizens of a city have a strong interest in preventing gang violence. Preventing the groups from meeting would render planning of violence more difficult. In spite of this, the Supreme Court recently struck down the ordinance as unconstitutional.

Questions of federal jurisdiction aside, I think the court was right in nixing Chicago's ordinance. Until an assembly becomes other than "peaceable," it must be protected from government interference. The words of the amendment are clear. If government can ignore those clear words and prohibit one assembly, there is nothing but the hope that officials will be "reasonable" to stop them from prohibiting any other assembly. Today the black youths on the street corner; tomorrow a political party convention. Let the police arrest people after they have started to commit a crime, not when it appears they are in a position to do so.

As always, there must be a balance between individual rights and the right of the whole society to live in peace. The First Amendment guarantee of the right to peaceable assembly protects both sides of that balance.