The FIRST AMENDMENT'S "right of the people peaceably to assemble" and the FOURTEENTH AMENDMENT have supplied a basis for federal protection of undefined FUNDAMENTAL RIGHTS from violation by the states. In the landmark case of UNITED STATES V. CRUIKSHANK (1876), the Supreme Court, in the course of allowing some lynchers to escape federal prosecution, said by way of OBITER DICTUM that the right peaceably to assemble was an attribute of CITIZENSHIP under a free government that antedated the Constitution, and that it was a privilege of national citizenship provided
that the assembly in question concerned matters relating to the national government. (See PRIVILEGES AND IMMUNITIES.)
With respect to STATE ACTION, the right of peaceable assembly is now regarded as a Fourteenth Amendment DUE PROCESS right. Thus, in DEJONGE V. OREGON (1937), the Supreme Court reversed a conviction for CRIMINAL SYNDICALISM under an Oregon statute of a man who had participated in a peaceful meeting called by the Communist party for a lawful purpose, on the grounds that the due process clause of the Fourteenth Amendment had been violated. Chief Justice CHARLES EVANS HUGHES wrote for a unanimous Court: "The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental," and "peaceable assembly for lawful discussion cannot be made a crime," no matter under whose auspices the meeting is held.
In addition, the rights of assembly and petition are mentioned in rather standardized language in all but two of the fifty state CONSTITUTIONS. The first such statement appeared in the North Carolina constitution of 1776, and the New Hampshire constitution of 1784 began the practice of adding the word "peaceable" to the right of assembly guarantee. Furthermore, the constitutions of Missouri, New Jersey, and New York specifically guarantee a particular form of association, the right of employees to bargain collectively through representatives of their own choosing; the North Carolina constitution forbids "secret political societies" as being "dangerous to the liberties of a free people"; and there is a declaration in the Georgia constitution, of dubious validity, that "freedom from compulsory association at all levels of public education shall be preserved inviolate."
The right of assembly, like nearly all other rights, is not and cannot be regarded as without limit. As Justice LOUIS D. BRANDEIS wrote in 1927, concurring in WHITNEY V. CALIFORNIA, "although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral." The right of assembly does not protect an unlawful assembly, usually defined in American law as a gathering of three or more people for the purpose of committing acts that will give firm and courageous people in the neighborhood grounds to apprehend a BREACH OF THE PEACE. It must be shown that those who assembled intended to do an unlawful act or a lawful act in a violent, boisterous, or tumultuous manner. Thus the right to engage in peaceful PICKETING is protected by the Constitution, but picketing in a context of violence or having the purpose of achieving unlawful objectives, may be forbidden.
In American law the right of assembly extends to meetings held in such PUBLIC FORUMS as the streets and parks. This point was first spelled out in HAGUE V. C. I. O. (1939), extending constitutional protection to street meetings since, in the words of Justice OWEN J. ROBERTS, streets "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Public authorities may be given the power to license parades or processions on the public streets as to time, place, and manner, provided that the licensing law does not confer an arbitrary or unbridled administrative discretion upon them. (See PRIOR RESTRAINT.) In addition, Justice Roberts wrote in CANTWELL V. CONNECTICUT (1940) that "When a CLEAR AND PRESENT DANGER of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." Thus, a leading decision has upheld the right to assemble on the grounds of a state house, but the Court has drawn the line at the picketing of a courthouse or holding a demonstration on jail grounds. The Court extended...