III. Free Association/assembly Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

III. Free Association/Assembly Claims

The First Amendment affirms that "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble and to petition the Government for a redress of grievances."¹⁵³ Freedom to assemble has stood as a palladium of liberty for social groups and movements of all kinds, both popular and unpopular, in the nation's history. The Supreme Court has interpreted the Free Association/Assembly cases as a limitation of governmental interference with individuals forming associations to advocate for specific ideas under what is also known as the Petition and Assembly Clauses.¹⁵⁴ There is a degree of ambiguity in the text, and it was not always clear whether it protected a single right that conjoined assembling for the purpose of petitioning or whether it distinguished those activities as two separate rights. In fact, in an early interpretation the Court limited these protections even further than simply restricting the federal government by claiming that they extended only to assembly connected with petitioning the government and not merely assembly itself.¹⁵⁵

However, the line separating petition from assembly rights blurred. It proved difficult to detach articulations of freedom of speech or other First Amendment liberties from notions of assembly because the ability to assemble in many cases allows the full potential of those liberties to be actualized. Worship, for example, would in many cases be impossible unless people are permitted to peaceably assemble. The Supreme Court came to recognize the connection and acknowledged that "[t]he right of peaceable assembly is a right cognate to . . . free speech."¹⁵⁶ It further found assembly rights "fundamental" and incorporated them to apply against state governments through the Due Process Clause of the 14th Amendment.¹⁵⁷ In subsequent years the Court also held that assembly rights were not limited solely to activity involving "religious or political" causes.¹⁵⁸ It seemed, therefore, that the right "peaceably to assemble" inscribed in the First Amendment would be sufficient as a stand-alone right to confer associational protections of various sorts.

One of the few landmark free assembly cases was Edwards v. South Carolina.¹⁵⁹ In this case, a number of African-American students met early in the morning at a Columbia, South Carolina, church and then proceeded to walk in groups of about 15 to the South Carolina State House grounds.¹⁶⁰ The purpose of the event was to peacefully protest South Carolina laws that discriminated against African-Americans.¹⁶¹ Law enforcement knew of the planned demonstration and was already present when the protesters arrived. The officers informed the protesters that they had the right to conduct their demonstration so long as they were peaceful.¹⁶² After those gathered sang patriotic and religious songs for more than 15 minutes, they were arrested and eventually convicted in state court for breaching the peace, even though there had been no impact on pedestrians or traffic.¹⁶³

The Supreme Court, in a direct and clear decision, threw out the convictions:

The state courts have held that the petitioners' conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. And it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.¹⁶⁴

Though thereby already broad and ripe to be invoked independent of...