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Freedom of Assembly - Further Readings

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Fundamental Rights
Every day, Americans exercise the freedoms of association and assembly. Bothfreedoms protect expressive choices. They let individuals decide what to think and say, with whom to agree or disagree and when and how to do so. The freedom of association safeguards membership in organizations, regardless of whether individuals, groups, or even the government approve. The freedom of assembly allows people to gather in public to express their beliefs, happily or inthe angriest protest. Fundamental to a free society, these rights are not always easily enjoyed. Majorities can find their ideologies threatened, and government officials can see some kinds of association and assembly as dangerous. The exercise of these freedoms has repeatedly provoked controversies that test the nation's commitment to constitutional liberties.
The right of assembly is as old as the Bill of Rights of the United States Constitution. Article I of the Bill of Rights guarantees "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The framers of the Constitution protected these civil liberties because British authorities had repressed them during the colonial period. Particularly infuriating had been the refusal of the British king to answer the colonists' petitions, despite this right having been guaranteed in the EnglishBill of Rights of 1689. Thus, in the drafting of the First Amendment, the protections against government interference in speech and religion were joined to that of assembly and petition. In every era since, these rights have playeda major role in shaping important historical events, from the gathering of two million anti-slavery petitions by abolitionists in the late 1830s, to thenineteenth and twentieth century marches of suffragettes on behalf of women'svoting rights, to the demonstrations of the Civil Rights movement in the 1950s and 1960s, and the anti-war protests of the same period.
Like speech rights, the right of assembly is not absolute. It is even somewhat weaker. The Supreme Court has ruled that the First Amendment does not giveas much protection to assembly as it does to "pure speech," a distinction observed in cases such as Cox v. Louisiana (1965). Lawmakers thus have regulated assembly in numerous ways, from requiring the issuance of permits todeclaring when, where and for how long public demonstrations may occur. The Court has often recognized the importance of these reasonable regulations. InCox v. New Hampshire (1941), it upheld a state law whose permit requirement for parades was intended to keep sidewalks and streets open for traffic. Government limits on assembling in particular public sites have been upheld, too, as witnessed in the decision Adderley v. Florida (1966), whichallowed a state to ban demonstrations on jail premises. By the 1980s, courtsrequired that such regulations must be narrowly tailored to serve a significant government interest, not control the content of the proposed assembly, andleave open alternative means for public expression.
Political Expression
Government abridgments draw close scrutiny from the courts. While the First Amendment's definition of "peaceable" assembly is open to wide interpretation,twentieth century courts have refused to allow it to be used as a blanket excuse for any government control. The modern trend has its roots in De Jonge v. Oregon (1937), one of the earliest cases to emphasize the importanceof assembly rights. Dirk De Jonge, a Communist party member, had organized ameeting in Portland, Oregon, to protest police violence against striking workers. Though the meeting was peaceful, the state convicted him for selling Communist pamphlets in violation of a statute prohibiting "any unlawful acts ormethods as a means of accomplishing or effecting industrial or political change or revolution." In overturning the conviction, the Supreme Court declaredthat "peaceable assembly for lawful discussion cannot be made a crime." Moreover, the right of assembly was "equally fundamental" to that of freedom of speech and the press. Three years later, in another milestone, Thornhill v.Alabama (1940), the Court gave protection to union picketing. Overturning a state law that prohibited picketing, the 8-1 decision observed that labordemonstrations were "indispensable to the effective and intelligent use of the process of popular government to shape the destiny of modern industrial society."
In recent decades, political expression has received the greatest protection,although this change came slowly. The many public demonstrations of the Civil Rights movement, for example, produced violent reactions from citizens opposed to voting rights and integration for African Americans, and courts in southern states often convicted demonstrators for breaching the peace. In Edwards v. South Carolina (1963), the Supreme Court reversed the convictionsof almost 200 black students who protested discrimination by marching in orderly fashion on the state capitol grounds. The Edwards decision made it clear that states could not punish "the peaceful expression of unpopular views." Controversial decisions would follow, occasionally outraging society while reminding it that even the least popular groups could assemble legally. Such a decision was Smith v. Collin (1978), which ordered the Chicago suburb of Skokie, Illinois, to permit the American Nazi Party to march in neighborhoods inhabited by 70,000 Jewish residents, many of whom were Holocaust survivors. Skokie's local ordinances, which controlled the content of speech and the clothing of marchers, were held unconstitutional. "[I]f these civil rights are to remain vital for all," the federal court held, "they must protectnot only those society deems acceptable, but also those whose ideas it quitejustifiably rejects and despises."
Freedom of Association
Unlike the right of assembly, the Constitution makes no mention of the freedom of association. Through the late 1950s, decisions that broached the question of association considered it to be an aspect of other First Amendment liberties. This early view emerged in cases challenging the extent of Congress' power to question witnesses. They concerned the hearings of the House Committeeon Un-American Activities (HUAC), during which lawmakers compelled reluctantwitnesses to testify about the political associations of themselves, their friends, relatives, and colleagues, in an all-out attempt to identify Communists and so-called sympathizers. Refusal to testify could lead to charges of contempt. The Supreme Court curbed this power in Watkins v. United States (1957), holding that the use of such inquisitorial powers violated rights of association and privacy, endangered witnesses, and might even make other citizens avoid unpopular political ideas and assembling in groups.
In 1958, the Supreme Court took a defining step in NAACP v. Alabama ex rel. Patterson. The case grew out of the tumultuous struggle for civil rights. Alabama officials had resisted school desegregation and boycott efforts bythe National Association for the Advancement of Colored People (NAACP), butwhen the organization persisted, prosecutors tried to prevent it from doing any further business in the state. Eventually, the state won a lower court order forcing the NAACP to disclose its membership records, which the organization refused to do in order to protect its members' safety. After the trial court fined it $100,000 for contempt, the Supreme Court reversed this decision and allowed the list to be kept private. Justice John Marshall Harlan II was persuaded by the NAACP's argument that forced disclosure of its membership would lead to economic reprisals, physical threats, and other kinds of public hostility. The state had failed to show a compelling interest that could outweigh these dangers. The contempt finding thus deprived the NAACP's members of their due process rights under the Fourth Amendment, and crucially, their constitutional right to free association. This right existed in the close relationship between the First Amendment rights of speech and assembly. Though enunciating the right for the first time, Justice Harlan noted that it "has been considered an essential element of the American political process since the early days of the nation's existence."
Following Patterson, the Supreme Court quickly issued similar decisions protecting individuals from divulging their association with groups. Again,in Bates v. Little Rock (1959), it allowed the NAACP to resist disclosing its membership lists. Shelton v. Tucker (1960) considered an Arkansas teacher competency statute which mandated that, as part of their review,teachers disclose every organization to which they had belonged. Evaluatinga teacher's competency on this standard, the Court ruled, was too sweeping aninvasion of her associational rights.
The Cold War era, characterized by extreme government suspicion of subversiveactivity, provided the Court with considerable opportunities to balance therights of government and individuals. Here its decisions were inconsistent. Unlike the NAACP, the American Communist Party could be forced to disclose thenames of its members because, as the Court held in Communist Party v. Subversive Activities Control Board (1961), the organization's activities posed dangers which the government had a substantial interest in controlling. Several cases challenged the constitutionality of the Smith Act of 1940, whichprohibited conspiring to overthrow the government or merely promoting beliefs that advocated doing so. In particular, two cases challenged the law's restrictions on membership in groups committed to these ends. The Court determined that membership alone was insufficient grounds for conviction, but that convictions were constitutional when an individual was an active member who notonly knew about the group's illegal activities but also intended to further them. Thus it upheld a conviction in Scales v. United States (1961) butoverturned another in Noto v. United States (1961).
In cases decided in the 1970s and later, the Court looked negatively on attempts to make individuals espouse ideas or beliefs. Just as there was a right to associate, so, too, was there a right not to associate. Compelling association was unconstitutional, as was made clear in Abood v. Detroit Board of Education (1977). In Abood, Detroit school board employees were free not to join a union, but still had to pay a service fee that was equal to union dues. By compelling them to pay for political causes to which they wereopposed, held the Court, board officials had violated the employees' right tochoose not to associate. A similar decision was reached in Keller v. State Bar of California (1990), limiting the use of attorneys' mandatory state bar membership dues. Only if the bar showed that the dues were used for regulating and improving the legal profession could the dues be used to furtherpolitical causes with which the members disagreed.
However, the right against compelled association proved to be far from absolute. When organizations claimed it in defense of discriminatory practices, theSupreme Court intervened to break down exclusive barriers to membership. This trend began in 1984 with Roberts v. U.S. Jaycees. After several women sued the national Jaycees, whose bylaws limited membership to men age 18 to35, the organization defended its policy as an exercise of its free association rights. The Minnesota Supreme Court found the Jaycees had illegally discriminated on the basis of gender, and the Supreme Court agreed. It ruled thatinfringements on the right to association were sometimes constitutional, if they served important state interests and as long as the restrictions were unrelated to "the suppression of ideas". More state anti-discrimination laws were seen to promote the same valid interests in cases such as Rotary International v. Rotary Club of Duarte (1987) and New York State Club Association v. City of New York (1988), where clubs were forced to open their doors to all races and sexes.
In modern rulings, the importance of ideas and beliefs in the right to association stands paramount in Supreme Court doctrine. Time and again, it has emphasized that the right to association derives from the First Amendment and, assuch, is protected only when it is asserted along with a First Amendment right. Thus it is not merely enough to claim that associational rights are violated simply because any kind of restriction exists, as did the plaintiffs whounsuccessfully challenged an ordinance in City of Dallas v. Stanglin (1989) that barred adults from entering dance halls for teenagers. An expressive purpose must be present to trigger constitutional protection. This purposecan be expressed in any number of ways, including through economic means. Aboycott against white-owned businesses was held to be legal in National Association for the Advancement of Colored People v. Claiborne Hardware Co.(1982) because it was designed to further the goals of civil rights, but a boycott by trial lawyers who wanted higher fees to represent poor clients washeld to have no First Amendment protection in FTC v. Superior Court TrialLawyers Association (1990), because the lawyers' goal expressed no political ideas.
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