Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

Freedom of Assembly – Peaceful Protest

Your 1st Amendment Right 

Know Your Rights to Peaceful Assembly & Protests – Download Pamphlet PDF CLICK HERE

The First Amendment prohibits government from abridging “the right of the people peaceably to assemble.” This basic freedom ensures that the spirit of the First Amendment survives and thrives even when the majority of citizens would rather suppress expression it finds offensive.

Over the course of our history, freedom of assembly has protected individuals espousing myriad viewpoints. Striking workers, civil rights advocates, anti-war demonstrators and Ku Klux Klan marchers have all taken to the streets and sidewalks in protest or in support of their causes. Sometimes these efforts have galvanized public support or changed public perceptions. Imagine a civil rights movement without the March on Washington or the women’s suffrage movement without ranks of long-skirted, placard-carrying suffragists filling city streets.

The U.S. Supreme Court recognized the importance of this freedom in the 1937 case De Jonge v. State of Oregon, writing that “the right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” According to the court the right to assemble is “one that cannot be denied without violating those fundamental principles which lie at the base of all civil and political institutions.”

In De Jonge, the high court struck down an Oregon “criminal syndicalism” law that prohibited advocacy of “any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” Dirk De Jonge had been convicted for teaching communist doctrine to a gathering of 300 people. The Supreme Court reversed his conviction, ruling that “the holding of meetings for peaceable political action cannot be proscribed.”

The First Amendment protects peaceful, not violent, assembly. However, there must a “clear and present danger” or an “imminent incitement of lawlessness” before government officials may restrict free-assembly rights. Otherwise, the First Amendment’s high purpose can too easily be sacrificed on the altar of political expediency.

According to the Supreme Court, it is imperative to protect the right to peaceful assembly, even for those with whose speech we disagree, “in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.”

In the early 1960s, young citizens exercised their free-assembly rights in an effort to focus public attention on one of this nation’s most painful problems, segregation. In Columbia, South Carolina, 187 African-American students marched to the South Carolina Statehouse grounds, carrying signs with messages such as “Down with Segregation.”

Although the demonstrators were peaceful and no violence erupted from onlookers, the marchers were all convicted of breaching the peace. However, the Supreme Court reversed the convictions in its 1963 decision Edwards v. South Carolina, finding that the “circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form.” The high court said that the government could not criminalize “the peaceful expression of unpopular views.”

In a more contemporary example of that principle, the Ku Klux Klan in June 1998 marched in the town of Jasper, Texas, where a black man, James Byrd, had been dragged to death behind a pickup truck. Three white men were convicted of the killing.

The KKK’s right to assemble peaceably was secured by the famous 1977 case National Socialist Party v. Skokie, in which the American Civil Liberties Union successfully argued that the First Amendment prohibited officials of Skokie, Ill., from banning a march by the National Socialist Party. Skokie is a Chicago suburb that is home to many Holocaust survivors. One federal judge reasoned that “it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.”

Government officials may not impose restrictions on protests or parades or other lawful assemblies in order to censor a particular viewpoint or because they dislike the content of the message. However, they may impose some limitations on assembly rights by enacting reasonable “time, place and manner” restrictions designed to further legitimate regulatory objectives, such as preventing traffic congestion or prohibiting interference with nearby activities.

Those who protest and march may also have to pay a permit fee as long as the fee is reasonable and officials do not withhold the permit because of their unpopular views. In the 1992 case Forsyth County v. The Nationalist Movement, the Supreme Court struck down an ordinance that allowed an administrator to charge a higher permit fee to groups whose march would likely require more police protection. According to the court, free-speech and assembly rights should not become more costly just because marchers may elicit a hostile reaction from onlookers.

The high court also allowed curbs on assembly in its 2003 decision Virginia v. Hicks, saying that the city of Richmond could make the streets and sidewalks of a housing project off-limits to unauthorized people to curb drugs and other crime in the area. Kevin Hicks, a visitor who was arrested, claimed his rights of association and free speech were violated. But a unanimous high court said Hicks, who was purportedly delivering diapers to his child in the housing project, was not engaged in any First Amendment-protected activity.

First Amendment freedoms ring hollow if government officials can repress expression that they fear will create a disturbance or offend. Unless there is real danger of imminent harm, assembly rights must be respected.

David L. Hudson Jr. is a First Amendment fellow for the Freedom Forum and law professor at Belmont University who publishes widely on First Amendment topics. He is the author of several First Amendment books, including “Let The Students Speak!: A History of the Fight for Freedom of Expression in American Schools” (2011), “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and a 12-lecture audio course, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018).

Tony Mauro, fellow for the First Amendment at the Freedom Forum who has covered the U.S. Supreme Court since 1979 including for the National Law Journal and ALM Media Supreme Court Brief, contributed. source

Assembly Requires Us to Come Together

When May Government Restrict Your Right to Assemble and Protest?

Learn when, why, and how the government may set limits on the First Amendment right of assembly.

The right of assembly is closely linked to its more famous companion in the First Amendment to the U.S. Constitution: freedom of speech. Both rights have been at the heart of controversies for much of our country’s history, from picketing strikers in the 1930s to civil rights sit-ins in the 1960s and Black Lives Matter protests in the 2020s, from KKK rallies in the 1920s to white supremacist marches (and riots) in the 21st Century. But the right to gather with others isn’t limited to political protests. It can also include simply hanging out with friends in public.

As with all constitutional rights, the right of assembly may be limited in some situations, including when gatherings threaten public safety and health. This article gives a brief overview of when and how the government may impose restrictions on your right to gather.

Right to Peaceably Assemble & Limits on Protests

No First Amendment rights are absolute, but the right to gather is the only one that includes the most important limit in the actual words of the amendment: “the right of the people peaceably to assemble.”

Protests That Turn Violent

The right to peaceably assemble means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940)). The “clear and present danger” standard is a particularly high hurdle for government officials to overcome if they want to prevent planned gatherings ahead of time.

Protests That Pose Public Safety Threats

Violence or the threat of violence isn’t the only limit on the right of assembly. Authorities may also prevent or stop gatherings that pose other immediate threats to public safety.

Police routinely arrest protesters who block traffic on freeways or bridges. That’s generally allowed because maintaining public safety involves keeping streets open and traffic moving. At the same time, courts have repeatedly held that authorities aren’t justified in breaking up public protests just because they slow traffic, inconvenience pedestrians, are annoying, or make other people mad. (See, for example, Edwards v. South Carolina, 372 U.S. 229 (1963) and Coates v. City of Cincinnati, 402 U.S. 611 (1971).)

However, as part of a wave of anti-protest legislation that picked up steam in 2021, some states have passed laws criminalizing protests that block traffic, even temporarily. For instance, laws in Florida and Oklahoma make it a crime to obstruct the normal use of roadways, including by simply standing in the street. Those same laws also extended protections to drivers who hit protesters. Part of Oklahoma’s law was temporarily prevented from taking effect pending a court decision on whether it’s constitutional. (Fla. Stat. §§ 316.2045, 870.07 (2022); Okla. Stat. tit. 21, § 1321 (2022); Okla. NAACP v. O’Connor, 2021 WL 4992754.)

Protests Resulting in Riots or Property Damage

Protests that lead to property damage—or simply create a threat of property damage—might also be illegal. Under Florida law, for example, you can be arrested for participating in a group of three or more people who intend to engage in disorderly conduct that results in injury, property damage, or the danger of either type of harm—even if you don’t damage any property or do anything violent. And if the protest was large (25 or more people), you could be charged with aggravated riot—a second-degree felony. (Fla. Stat. § 870.01 (2022).)

As is true for limits on free speech, courts have held that government may set rules on where, when, and how public protests and other gatherings can take place, as long as those rules are:

• reasonable
• “content neutral,” meaning they aren’t an attempt to squelch demonstrations or other gatherings based on their political message, and
• “narrowly tailored,” meaning they’re designed to serve legitimate concerns (like health and safety) with as few restrictions as possible on constitutional rights.

These rules are often referred to as “time, place, and manner restrictions.” Below are some examples of how these guidelines limit what the government can do.

Protests in a Public Forum

There’s less leeway to restrict demonstrations and other gatherings in places that are traditionally considered “public forums” for free expression—such as sidewalks, parks, and public squares—than on other types of public property like military installations, prisons, courthouses, and airport terminals.

Size Limits on Protests

A federal court struck down an ordinance that limited the size of most gatherings in front of New York City Hall and the adjacent plaza, except for city-sponsored public events. As the court pointed out, the ordinance wasn’t narrowly tailored to serve the city’s legitimate safety concerns, and it could allow city officials to stop people from gathering based on their point of view. (Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D.N.Y. 2000).)

Permits and Fees to Protest

Generally, cities and other governmental bodies (like public universities) are allowed to require groups to get permits for demonstrations, parades, street festivals, and other large gatherings. But courts have struck down these requirements when they impose higher fees or other obstacles linked to the demonstrators’ controversial viewpoints and the expected response. (See, for example, Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).)

Temporary Curfews

As a general rule, courts allow curfews—which usually restrict people’s right to gather at nighttime—when public officials have declared an emergency, the curfews are needed to keep order due to immediate threats to life or property, and the restrictions are temporary.

Buffer Zones

When it comes to laws aimed at keeping anti-abortion demonstrators a certain distance away from clinic entrances and patients, the U.S. Supreme Court has allowed some buffer-zone restrictions while striking down others. The different outcomes usually turn on whether a law is designed to serve important public objectives (like protecting privacy and access to medical facilities) without putting too many limits on the rights of protesters (see, for instance, Hill v. Colorado, 530 U.S. 703 (2000) and McCullen v. Coakley, 573 U.S. 464 (2014).) Of course, different outcomes may also depend on the changing makeup of the Court.

Can the Government Restrict Gatherings on Private Property?

Because the First Amendment applies only to government actions or laws that violate rights, private property owners are generally free to keep groups from protesting or gathering on their property. But there are limited exceptions. As the U.S. Supreme Court explained, the balance between property owners’ rights and the constitutional rights of people who use that property changes the more owners open up their property for public use for their own advantages, such as on privately owned bridges, railroads, and company towns. (Marsh v. Alabama, 326 U.S. 501 (1946).)

Also, some states—like California and New Jersey—provide broader rights than the federal constitution for assembly and speech on certain types of private property, such as shopping centers and private universities.

Seeking Legal Help

If you believe that governmental authorities have violated your right to assemble, a civil rights attorney could help you explore your legal options. But if you’ve been arrested at a protest or other gathering, you should speak with a criminal defense attorney as soon as possible, even if your case involves potential violations of constitutional rights.