Is Freedom of Assembly a Dead Letter?

It’s now routine for police to disperse Occupy encampments, to confine demonstrators inside metal fences, corral them in plastic, and sequester them in “free speech zones” far removed from gatherings they want to influence, or denounce, or otherwise communicate with or about. Public spaces are treated as if they belong to the government, to be doled out by the spoonful, and not to the people, even though the First Amendment is quite explicit that what is forbidden is “abridging...the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In 1791 (originalists, please note), the right to assemble was considered important enough to include in the first, foundational supplement to the Constitution, deemed essential to winning the ratification of states where anti-Federalist currents ran strong. Now, de facto, freedom of assembly is embattled—moribund as a matter of law though vigorously enacted on the ground by Occupy Wall Street and companion movements. Occupy assembles—that’s what it does. Its people consult. (There are many examples in the burgeoning Occupy literature, including my own Occupy Nation.) It’s as if governments presume that assemblies are guilty until proved innocent. This is the reverse of what the First Amendment implies—and, as we shall see, most state constitutions do as well. James Madison put the principle bluntly, in a speech to the House of Representatives in 1794: it was in “the nature of republican government” that “the censorial power is in the people over the government, and not in the government over the people.”

It would seem unlikely that the official, rampant disrespect shown to assemblies coast to coast stems from decisions made independently by hundreds of police officials. Last fall, at least two conference calls linked worried mayors who wanted to consult about these damnable assemblies. One of the chats was characterized as about “general information-sharing and best practices,” the other officially downplayed as “like a therapy session.” Whatever. But when one considers the formidable armament deployed at recent Occupy demonstrations, along with stringent ordinances passed in Charlotte and Chicago in the run-up to demonstrations later this month, it’s clear that the right to assemble is being treated as a nuisance—not a cornerstone of the republic. On this subject, politicians remain mute. Civil liberties don’t win many votes.

Thus, even as the authorities wave it away, the right of assembly is the subject of very little discussion and few judicial decisions. Welcome, then, the exceptions that crop up among recent writings by three law professors. “In the past thirty years,” writes Professor John D. Inazu of Washington University law school in Liberty’s Refuge: The Forgotten Freedom of Assembly, “the freedom of assembly has become little more than a historical footnote in American law and political theory.” (I link to Amazon not because I recommend necessarily buying through them but because they offer a download of the first chapter free.) Inazu’s book, along with another, Speech Out of Doors: Preserving First Amendment Liberties in Public Places, by Timothy Zick of William & Mary (both ably reviewed by Jeremy Kessler in The New Republic), go some considerable distance toward the necessary public discussion. Still another law professor, Ronald J. Krotoszynski, Jr., of the University of Alabama, has published a book, Reclaiming the Petition Clause: Seditious Libel, “Offensive” Protest, and the Right to Petition the Government for a Redress of Grievances, that focuses on the petition part of the right. (He also published a NYT op-ed.)

Here’s an angle that deserves attention, and American Civil Liberties Union, this means you: A preliminary search of state constitutions shows that the right to assembly is protected in almost all. Pennsylvania seems to have set the pace in 1776:.

The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes by petition, address or remonstrance.

Connecticut adopted a text that differs in only a single word: It subtracts the word “together.” Several other states stuck with “common good” and added “consult,” as in this from New Jersey:

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances,

and an almost identical version from Illinois, and this, from talkier Massachusetts:

The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.

California, the land of modernity and pepper spray, compresses the guarantee, but retains “consult” and “common good":

The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

Maryland declines the word “assembly” but affirms

That every man hath a right to petition the Legislature for the redress of grievances in a peaceable and orderly manner.

In the home state of Zuccotti Park, New York does guarantee “the right to assemble and petition,” as follows,

No law shall be passed abridging the rights of the people peaceably to assemble and to petition the government, or any department thereof....

but weirdly groups this with “divorce; lotteries; pool-selling and gambling; laws to prevent; pari-mutual betting on horse races permitted; games of chance, bingo or lotto authorized under certain restrictions.”

If the states have the juridical standing that conservatives claim for them, where is their outcry when the right to assemble is treated as a tentative, revocable loan by the authorities? If liberals take liberties seriously, where is their own outcry?