CONSTITUTIONAL RIGHTS FOUNDATION!
Bill of Rights in Action
Right to Peaceably Assemble
Right to Peaceably Assemble -- history and definition
The right to peacefully gather and parade or demonstrate to make one's views known or
to support or oppose a public policy is based upon the twin guarantees of the freedom of
speech and the right to peaceably assemble.
On October 14, 1774, the Declaration and Resolves of the First Continental Congress
declared, among a list of other demands,
"[t]hat the inhabitants of the English colonies in North-America, by the immutable laws
of nature, the principles of the English constitution, and the several charters or compacts,
have the following RIGHTS:
Resolved, N.C.D.8. That they have a right peaceably to assemble, consider their
grievances, and petition the king; and that all prosecutions, prohibitory proclamations,
and commitments for the same, are illegal."
Later, the declarations of rights of the newly formed states of Pennsylvania (1776), North
Carolina (1776), Massachusetts (1790), and New Hampshire (1784) included guarantees
for peaceable assembly and petition.
That Pennsylvania should be the first state to recognize the right to peaceably assemble is
no accident. The founder of the colony William Penn was arrested in 1670 on
Gracechurch Street, London, for delivering a sermon to an orderly assembly of Quakers
in the street in front of his assembly hall. The hall had been locked by London officials
and Penn had been forbidden to preach in any building. He was charged with unlawful,
tumultuous assembly that disturbed the king's peace. The judge in the case tried to force
the jury to return a verdict of guilty for William Penn and his supposed co-conspirator
William Mead. This was a bitter memory for those who believed in religious freedom and
the right for people to assemble peacefully.
In De Jonge v. Oregon, 299 U.S. 353 (1937), the U.S. Supreme Court unanimously ruled
that the right to peaceably assemble "for lawful discussion, however unpopular the
sponsorship, cannot be made a crime." The decision applied the First Amendment right of
peaceful assembly to the states through the due process clause of the Fourteenth
Amendment.
The right of peaceable assembly protects the right to picket, which has been used in labor
disputes and civil rights and anti-war demonstrations. In general, picketing is protected
when it is for a lawful purpose, conducted in an orderly manner, and publicizes a
grievance of some kind.
Generally, parades or demonstrations can be controlled by local time, place, manner
regulations as long as they are applied in a nondiscriminatory fashion and do not block
such protected expression.
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"Freedom of speech and of the press are fundamental rights which are safeguarded by the
due process clause of the Fourteenth Amendment of the Federal Constitution. ... The right
of peaceable assembly is a right cognate to those of free speech and is equally
fundamental. As this Court said in United States v. Cruikshank, 92 U.S. 542, 552: `The
very idea of a government, republican in form, implies a right on the part of its citizens to
meet peaceably for consultation in respect to public affairs, and to petition for a redress of
grievances.' The First Amendment of the Federal Constitution expressly guarantees that
right against abridgment by Congress. But explicit mention there does not argue
exclusion elsewhere. For the right is one that cannot be denied without violating those
fundamental principles of liberty and justice which lie at the base of all civil and political
institutions, -- principles which the Fourteenth Amendment embodies in the general terms
of its due process clause." _ Chief Justice Charles Evans Hughes, De Jonge v. Oregon
(1937)
"Freedom of discussion, if it would fulfill its historic function in this nation, must
embrace all issues about which information is needed or appropriate to enable the
members of society to cope with the exigencies of their period.
"In the circumstances of our times the dissemination of information concerning the facts
of a labor dispute must be regarded as within that area of free discussion that is
guaranteed by the Constitution. ... Free discussion concerning the conditions in industry
and the causes of labor disputes appears to us indispensable to the effective and
intelligent use of the processes of popular government to shape the destiny of modern
industrial society. The issues raised by regulations, such as are challenged here,
infringing upon the right of employees effectively to inform the public of the facts of a
labor dispute are part of this larger problem." _ Justice Frank Murphy, Thornhill v.
Alabama (1940)
"These petitioners were convicted of an offense so generalized as to be, in the words of
the South Carolina Supreme Court, `not susceptible of exact definition.' And they were
convicted upon evidence which showed no more than that the opinions which they were
peaceably expressing were sufficiently opposed to the views of the majority of the
community to attract a crowd and necessitate police protection.
"The Fourteenth Amendment does not permit a State to make criminal the peaceful
expression of unpopular views." _ Justice Potter Stewart, Edwards v. South Carolina
(1963)
Right to Peaceably Assemble -- key U.S. Supreme Court decisions summarized
United States v. Cruikshank, 92 U.S. 542 (1876) -- The Supreme Court said that the
"right of the people peaceably to assemble for the purpose of petitioning Congress for a
redress of grievances, or for any thing else connected with the powers and duties of the
national government, is an attribute of national citizenship, and, as such, under the
protection of, and guaranteed by, the United States." The high court applied the liberty
only to any federal government's encroachment.
De Jonge v. Oregon, 299 U.S. 353 (1937) -- De Jonge was convicted for conducting a
public meeting under the auspices of the Communist Party. De Jonge had not advocated
any illegal activity or criminal doctrine. The U.S. Supreme Court reversed his conviction
as unnecessarily restrictive of his freedom of speech and right of peaceable assembly.
The high court's ruling applied the right of peaceable assembly and the right to petition
the government for a redress of grievances to the states through the Fourteenth
Amendment. And put these rights on equal footing with freedom of speech and the press.
"[P]eaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed."
Hague v. C.I.O., 307 U.S. 496 (1939) -- The high court ruled that peaceful demonstrators
may not be prosecuted for "disorderly conduct." This case also secured streets and
sidewalks as public forums.
Thornhill v. Alabama, 310 U.S. 88 (1940) -- The Supreme Court held that orderly union
picketing that informs the public of the issues is protected by the constitutional freedom
of speech and of the press and the right of peaceable assembly and cannot be prosecuted
under state loitering and picketing laws.
Cox v. New Hampshire, 312 U.S. 596 (1941) -- A unanimous Supreme Court upheld a
local (Manchester) ordinance that required every parade or procession on a public street
to obtain a license for a fee. Jehovah's Witnesses had brought the suit alleging that the
city of Manchester had denied their religious freedom. The court was clear that ordinance
had to be reasonable and designed for the safe and orderly use of the streets.
Edwards v. South Carolina, 372 U.S. 229 (1963) -- In an 8-to-1 decision the high court
overturned the breach of the peace convictions of 180 black students who had peacefully
marched to the state capitol to protest discrimination. The police stopped the
demonstration and arrested the students because they were afraid that the 200-300 who
gathered to watch the demonstration might cause a riot. The court held the state law
unconstitutionally overbroad because it penalized the exercise of free speech, peaceable
assembly, and the right of petition for a redress of grievances. A disorderly crowd, or the
fear of one, cannot be used to stop a peaceful demonstration or cancel the right of
peaceable assembly.
Cox v. Louisiana, 379 U.S. 536 (1965) -- Rev. B. Elton Cox was arrested and convicted
for breach of the peace in Baton Rouge, La., for leading a demonstration of 2,000 black
college students from the state capitol to the courthouse to protest the jailing of 23 other
students for attempting to integrate white lunch counters. The high court overturned his
conviction, 7-to-2, and held the state's breach of the peace law overly broad.
Amalgamated Food Employee's Union v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968)
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)
Bachellor v. Maryland, 387 U.S. 564 (1970)
Flower v. United States, 407 U.S. 197 (1972)
Central Hardware Co. v. NLRB, 407 U.S. 539 (1972)
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
Police Department of Chicago v. Mosely, 408 U.S. 92 (1972)
Grayned v. Rockford, 408 U.S. 104 (1972)