Robson The First Amendment
This chapter considers!the doctrines of “public forums” (as opposed to
private property) and “time place or manner” (TPM) (as opposed to
content). These doctrines - - - which often intersect - - - have developed
to govern situations in which the government is regulating speech in a
variety of contexts including protests, leafleting, state-sponsored groups,
and the particularly vexing problem of signs. The possibility of
government speaking rather than regulating operates as an “escape
clause” to these doctrines.
Robson The First Amendment
Recall that the text of the First Amendment provides “Congress shall
make no law . . . . abridging . . . the right of the people peaceably to
The Assembly Clause has not been given a robust role in First
Amendment doctrine. Perhaps this is unsurprising given the history of
its inclusion in the text. The following is adapted from RUTHANN ROBSON,
DRESSING CONSTITUTIONALLY (2013):
When the members of the First Congress debated including the right to
assemble in what is now the First Amendment, Representative Theodore
Sedgwick of Massachusetts argued that the assembly clause was unnecessary: it
was encompassed by the speech clause; it was self-evident; it would never be
called into question; and it was derogatory to the dignity of the House of
Representatives to descend into such minutiae. In support of all his arguments,
Sedgwick contended the amendment might just as well declare “a man should
have a right to wear his hat if he pleased.”
It proved not to be the best analogy. As Representative John Page noted, just as
“a man has been obliged to pull off his hat when he appeared before the face of
authority,” so too have people “been prevented from assembling together on their
lawful occasions.” This reference had tremendous resonance for the members of
the First Congress who would have understood it as alluding to William Penn’s
famous trial. A decade before Penn would receive the large land grant in Ame rica
that would become the state of Pennsylvania, Penn and his co-defendant William
Mead were prosecuted in England for “tumultuous assembly” and disturbing the
peace. They had preached outside a Quaker meeting house that had recently
been closed by Restoration regulations limiting religious dissent from the
recently re-established C hurch of England. Originally a pamphlet and
purported trial transcript, The Peoples Ancient and Just Liberties Asserted, In the
Tryal of William Penn and William Mead at the Old Bailey, 22 Charles II 1670,
written by themselve s, became an essential American document. It portrayed
Penn and Mead as heroes seeking their rights as Englishmen under the Magna
Carta but stymied by arbitrary officials in the King’s court.
Their hats were central to this portrait. As Quakers, Penn and Mead denied so-
called “hat honor,” the male practice of doffing one’s cap to a superior including
removing one’s hat in court. The refusal of hat honor, intended to challenge
hierarchy, had become a well-known characteristic of the Quakers; a fair
number of Quakers had been beaten, jailed, whipped, or fined because of their
practice by the time of the Penn and Mead trial. Thus, this colloquy was not
RECORDER. Do you know where you are?
RECORDER. Do you know it is the King's Court?
PENN. I know it to be a Court, and I suppose it to be the King's Court.
RECORDER. Do you not know there is respect due to the Court?
RECORDER. Why do you not pay it then?
Robson The First Amendment
PENN. I do so.
RECORDER. Why do you not put off your hat then?
PENN. Because I do not believe that to be any respect.
RECORDER. Well, the Court sets forty marks a piece upon your heads as a fine
for your contempt of the Court.
However, shortly before this interchange, Penn and Mead had been waiting,
hatless, for their case to be called. When an official noticed their hats were off,
he ordered an officer to “put on their hats again.” Seemingly, this command
was merely for the purpose of immediately issuing the order to Penn to remove
his hat, an order the court would have known as problematic for the Quaker
William Penn. Immediately after the Recorder’s fine, Penn and Mead both
PENN. I desire it might be observed, that we came into the Court with our hats
off (that is, taken off) and if they have been put on since, it w as by order from the
Bench, and therefore not we but the Bench should be fined.
MEAD. I have a question to ask the Recorder. Am I fined also?
MEAD. I desire the jury and all people to take notice of this injustice of the
recorder, who spake not to me to pull off my hat, and yet hath he put a fine upon
The court’s actions regarding the hats - - - provocative, arbitrary, and lacking
the essentials of fairness - - - set the scene for the remaining injustices of the
trial, the eventual jury acquittal, the prosecution of the jurors for that acquittal,
and the imprisonment of Penn and Mead for contempt for failure to remove their
Thus, Representative Sedgwick’s comparison of the right to wear or not wear a
hat and the right to assembly as equally trivial rights was not likely to be
accepted by those familiar with the Penn and Mead trial. Sedgw ick’s motion to
strike “assembly” from the text of the First Amendment failed by a large margin.
But perhaps Sedgwick was correct. Recent constitutional doctrine tends to
support the argument that assembly is mere surplusage and the right is
encompassed by freedom of speech, a lthough there is an argument that the
Assembly Clause should be more relevant. See John D. Inazu, The Forgotten
Freedom of Assembly, 84 TULANE LAW REVIEW 565 (2010).
167 U.S. 43 (1897)
WHITE [EDWARD DOUGLAS], J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.
[Revised Ordinances of the City of Boston (1893), Section 66 provided:
Sec. 66. No person shall, in or upon any of the public grounds, make any public
address, discharge any cannon or firearm, expose for sale any goods, wares or
merchandise, erect or maintain any booth, stand, tent or apparatus for the
purposes of public amusement or show, except in accordance with a permit from
The Court held “A city ordinance providing that no person shall make any
public address in any of the public grounds of the city, ‘except in accordance
with a permit from the mayor,’ does not violate the fourteenth amendment to
the constitution of the United States.”]