AuthorMcConnell, Michael W.
PositionTaking Stock of the Religion Clauses

On August 15, 1789, the First Congress met to discuss the proposed Bill of Rights. On the agenda for the day was a draft of what we now call the First Amendment, but which was their Third Amendment. It was proposed by a Select Committee, based in significant part on an earlier proposal written by James Madison. One of its two clauses provided for four separate and distinct expressive freedoms--apart from religious freedom, which was originally located in a separate clause. The four expressive freedoms were speech, press, the right of the people to assemble and consult for their common good, and petition. (1) Each of these freedoms had its own history, content, and rationale.

Theodore Sedgwick, a Federalist representative from Massachusetts and a first-rate lawyer, was the first to speak. He objected that the protection for freedom of speech made it redundant to spell out the rest of these rights, and particularly the right to assemble:

[W]hat, said he, shall we secure the freedom of speech, and think it necessary, at the same time, to allow the right of assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question.... It was inappropriate, he argued, for the House to spell out the details once a basic right has been secured. "[I]t is derogatory to the dignity of the House to descend to such minutiae"; "he feared it would tend to make them appear trifling in the eyes of their constituents...."

John Page, a Jeffersonian Republican from Virginia, disagreed with Sedgwick. Freedom of assembly was not a thing that never would be called in question. On the contrary, he reminded Sedgwick that "such rights have been opposed," that "people have also been prevented from assembling together on their lawful occasions." Page is referring to William Penn, who was prosecuted for unlawful assembly for preaching to a Quaker crowd on Gracechurch Street in London. (The location of Penn's speech is significant; it was on a public street.) Everyone in the room at that time would have known the story of Penn's prosecution, though it is little remembered today. "[T]herefore," Page argued, "it is well to guard against such stretches of authority, by inserting the privilege in the declaration of rights. If the people could be deprived of the power of assembling under any pretext whatsoever, they might be deprived of every other privilege contained in the clause."

Pay attention to Page's worry about "pretext," meaning an assertion of government authority not directly involved with speech. He does not tell us exactly what he is concerned about, but the context of the Penn prosecution provides an example. Penn could be prosecuted because he delivered his sermon on a public street, which is public property. If there is a constitutionally guaranteed freedom to assemble, there must be a place in which to do so. Some assemblies took place on private property, principally churches, taverns, and coffee houses. But those locations were typically limited in capacity and not always available. Most large public expressive gatherings were on public property, such as the Boston Commons, where the original Tea Party folks gathered to organize and hear speeches, or the public street where William Penn so famously was arrested. It took the Supreme Court many years to recognize that public streets, parks, and sidewalks must be open for people to assemble and speak, (2) but the logic of the public forum doctrine was contained in Page's reminder of Penn's act of sermonizing on Gracechurch Street in London.

In sum, Sedgwick regarded it as obvious that the freedom of speech encompassed the right of people to freely converse together, and thus to get together in groups for that purpose, making it unnecessary to list the freedom separately. But Page was correct that governmental authorities regarded assembly as a particularly dangerous activity and regulated it more strictly than more private forms of speech. It might seem obvious that people have the right to meet together in groups, to "freely converse together," as Sedgwick put it, but the distinctive character of the assembly right argues for including a separate and independent protection in the First Amendment. John Page won the argument. Sedgwick's motion "lost by a considerable majority," according to the report in the Annals of Congress. (3)

For the right to speak focuses on the message. That is why content and viewpoint-based regulations are subject to the strictest possible judicial scrutiny. The right of assembly or association focuses on something antecedent to the delivery of a message: on the process of formulation of ideas and selection of a message. A group of like-minded people--Presbyterians, say, or Democrats or veterans or the American Bar Association--may not even know what their message on a particular issue will be until they have had the chance to meet. And this right of association involves a collective or communitarian element not necessarily present for mere speech. We may be able to speak spontaneously and as individuals, but we cannot communicate as a group unless we can gather as a group to share our ideas and aspirations. A group of our own choosing. The American Revolution might never have gotten off the ground if the Sons of Liberty had been required to allow the local Tories to participate in their deliberations. (4)

It is one thing to allow individuals to say whatever they wish, and quite another to allow them to cooperate with others to decide what they wish to say as a group. Collective speech is potentially much more powerful than individual speech. It is also potentially much more dangerous or subversive to the government--which is why this right is qualified by the adverb "peaceably," which was not thought necessary for speech, press, or petition. And thanks to John Page and others, this right of assembly and association is equally and independently protected by the First Amendment. If we prevent the government from regulating the content of what we say, but allow it to regulate and control the membership, leadership, or institutional structure of the groups that are the seedbed of ideas and communication, we will have given the government a powerful instrument for controlling speech, press, religion, assembly, and petition. To focus just on preventing content-based regulation of messages is not enough.

Despite Sedgwick's optimism, the right of groups to assemble and converse together would not remain uncontroversial for long. When, perhaps inspired by the Jacobin Clubs of Paris, opponents of the Washington-Hamilton administration organized so-called "Democratic-Republican Societies" up and down the seaboard, (5) many Federalists thought this was taking the freedom of association to dangerous extremes. Not only did the whole enterprise bear too strong a resemblance to things French--never popular in America--but the Societies' practice of holding meetings only among like-minded members struck many critics as a mark of...

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