The First Amendment prohibits
government from abridging "the right of the people peaceably to
assemble." People are entitled to assemble and to speak and be heard, as
long as they remain nonviolent. 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. This right is guaranteed
against unreasonable federal and state restrictions and interference. However,
local authorities may properly require that large rallies and parades be held
only after the police department has been notified. They may also require
permits, as long as the requirement is a general one that all organizations
must meet.
While the right to peaceful assembly
is primarily intended to protect freedom of people to express themselves in
public places, the courts have interpreted that, in some instances, this
constitutional protection may be extended to private property as well. The
first attempt to provide a constitutional basis for the protection of free
expression on private property occurred in the mid-1940s. In Marsh
v. Alabama (1946), the Supreme Court held that the owners and operators
of a company town could not prohibit the distribution of religious literature
in the town's business district because such expression was protected by the
First and 14th amendments. The majority reasoned that the town displayed many
of the attributes of a municipality; therefore the state-action requirement was
satisfied for constitutional purposes of sustaining the rights of free
expression. As stated in Marsh, "the more an owner, for his
advantage, opens up his property for use by the public in general, the more do
his rights become circumscribed by the statutory and constitutional rights of
those who use it." In striking a balance, the Court concluded that the
free-speech rights of the individual were paramount over the property rights
asserted by the company.
The Court subsequently extended the
rationale of Marsh to peaceful picketing in a large shopping center
known as Logan Valley Mall. In Amalgamated
Food Employees Union v. Logan Valley Plaza (1968), the Court considered
whether non-employee union members could be enjoined from picketing a grocery
store in a privately owned shopping center. The Court noted that the answer
would be clear "if the shopping-center premises were not privately owned
but instead constituted the business area of a municipality."
To date, the New Jersey Supreme Court
has provided the most extensive and clearly articulated model for rejecting the
traditional state-action requirements by holding mall owners accountable for
violations of the state's free-speech protections. The New Jersey Supreme Court
interpreted the free-speech provisions of the state constitution as extending
to private owners of shopping malls as well as to state action in New Jersey
Coalition Against War in the Middle East v. J.M.B. Realty Corp. (1994).
Before deciding New Jersey Coalition Against the War, the New Jersey
Supreme Court had decided State v. Schmid (1980), which required the
court to balance individual expression rights with property rights in the
context of free speech at a privately owned university. Schmid
articulated three factors: (1) the nature, purpose and primary use of such
private property; (2) the extent and nature of the public's invitation to use
that property; and (3) the purpose of the expressive activity undertaken on
such property in relation to both the private and public use of the property.
After applying the Schmid test, the New Jersey Supreme Court reasoned in
New Jersey Coalition that because the mall owners "have
intentionally transformed their property into a public square or market, a
public gathering place, a downtown business district, a community," they
cannot later deny their own implied invitation to use the space as it was
clearly intended.
At present, the majority of states
that considered the issue continues to decline to extend any right of free expression
to privately owned property.
Over the course of American history,
freedom of assembly has protected individuals espousing variety of different
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, S.C., 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 of 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.
Curfews,
Loitering and Freedom of Association
Abortion
Protests and Buffer Zones
Historic Supreme Court Decisions