Liberty's Refuge: The Forgotten Freedom of Assembly.

• Author: Bhagwat, Ashutosh A.
• Position: Book review

1. INTRODUCTION

   Professor John Inazu's recently published book, Liberty's Refuge: The Forgotten Freedom of Assembly, (1) is a truly impressive achievement. It is a good book for all of the usual reasons: it is well-researched, well-written, and persuasive. But Liberty's Refuge is more than just well done--it is an important book in the contribution it makes to our understanding of the First Amendment. In this book, Professor Inazu has discovered and reintroduced to the rest of us the lost history of a very important constitutional right--the right to peaceable assembly protected by the First Amendment. He successfully makes the case for the central role that this right played in historical understandings of the First Amendment, and then demonstrates how, in the past half century, this right declined and eventually was almost forgotten by both the Supreme court and our society as a whole. That accomplishment is in itself a significant addition to our understanding of constitutional history, and one he should be proud of.

   Liberty's Refuge, however, is not just a historical work; it is also a theoretical and normative one. Professor Inazu's theoretical focus is on how the decline of the assembly right, and its replacement by the modern, truncated right of expressive association, can be tied to other historical and philosophical developments of the 1950s and 1960s, notably the challenges posed by the Mccarthy and civil Rights eras, and the dominance of political philosophy by first the pluralism of Robert Dahl and then the liberalism of John Rawls. In particular, he notes how both of these philosophies, while purporting to provide an explanation and justification for liberal democracy, contained within them strong normalizing assumptions that tended to discourage radical difference and dissent. These tendencies influenced the courts in ways that lead them to transform a broad (and textual) right of assembly into a narrower (and nontextual) right of expressive association (as well as a narrow, for other reasons, right of intimate association). This explanation enriches our knowledge of how this doctrinal transformation occurred and succeeds unusually well in relating doctrinal evolution to the greater world, an accomplishment notably rare in legal scholarship.

   Finally, Liberty's Refuge and Professor Inazu's previous work (2) are an important component of an emerging scholarly focus on the role of broader First Amendment liberties, which seeks to undo some of the damage done by the myopic focus of the Supreme Court and most modern First Amendment scholars on the Free Speech Clause of the First Amendment. This scholarship seeks to bring to the foreground First Amendment rights other than free speech, including not only assembly but also association and petition, and to understand the critical role that those rights play in the democratic process and popular self-governance. (3) In the course of doing so, this scholarship seeks to help us understand in important ways how the various First Amendment liberties work in concert to advance self-governance, and indeed seeks to re-envision the nature of the democratic process itself. (4) This scholarship, as a whole, has the potential to radically alter contemporary understandings of the nature, role, and significance of the First Amendment. Professor Inazu's particular contribution to this scholarship has been to reveal the central role that public assembly historically played in the democratic process, and the prominence that the assembly right historically held in the public consciousness. He also demonstrates the capaciousness of the assembly right, especially in contrast to the stingy scope the Supreme Court has given to assembly's modern cousin, the right of expressive association. And building on all of this, he provides a powerful argument for why it is worth rediscovering and reviving the Assembly Clause. He shows in particular that dissident groups, even nonexpressive groups, have important contributions to make to popular democracy and to the broader process of developing and questioning our basic commitments as a society. This role, he shows, has been severely compromised by the Supreme Court's abandonment of assembly in favor of expressive association because modern law provides little protection to the internal autonomy of nonexpressive associations. This is not only a shame, but also a blow to constitutional values because nonexpressive associations, and the role they play in civil society, directly advance the underlying purposes of the First Amendment to protect the process of democratic self-governance.

   In short, Liberty's Refuge is an important book with a lot of original and interesting things to say about the First Amendment. In many ways, however, my favorite thing about this book is not just what it says, but how it says it. Impressively, while advancing strong and controversial positions, Professor Inazu somehow avoids the trap into which so much constitutional scholarship falls of purporting to provide a final and complete theory which provides the grounding for an entire area of law and rejecting all other perspectives as wrong-headed. Instead, this book self-consciously sets out to start a conversation about important questions: how and why forgotten First Amendment rights such as peaceable assembly should be revived, and what role assembly promises to play in the political process. (5) This conversation promises to be a rich and exciting one.

2. POINTS OF DIVERGENCE

   My praise for Liberty's Refuge does not, of course, mean that I agree with everything that Professor Inazu has to say. My disagreements are not fundamental, yet they are not trivial either, and in some respects they may reflect more basic differences between us on the relationship between First Amendment liberties and the democratic process.

   Perhaps my greatest point of divergence is that I think Professor Inazu overemphasizes the expressive nature and purpose of assembly. The most telling illustration of this is his argument that private groups' choices of membership and leadership should be protected because "the existence of a group and its selection of members and leaders are themselves forms of expression," (6) and so any distinction between expression and conduct by groups, such as the distinction relied upon by Justice Ginsburg's majority opinion in Christian Legal Society v. Martinez, is unsustainable. (7) Ironically, however, by rooting protection for assembly in its expressive nature, he falls into precisely the same error that he (correctly) lambasts the Supreme Court for. As he notes, the key, unfortunate turn in the Supreme Court's jurisprudence in the area of assembly and association was its abandonment of a stand-alone right of group autonomy, originally rooted in the Assembly Clause but later transmogrified into nontextual "association," into a narrower right for groups to organize for expressive purposes alone. In other words, assembly/association became a subsidiary right to speech. This transition started with the founding association case, the Supreme Court's 1958 decision in NAACP v. Alabama, which relied on an association right to strike down Alabama's efforts, during the Civil Rights era, to force a civil rights organization to disclose its membership lists. (8) It culminated in Roberts v. United States Jaycees, in which the Court rejected the Jaycees' claim to a First Amendment right to exclude female members on the (dubious) grounds that admission of women would not substantially interfere with the Jaycees' ability to communicate their views. (9) The Court's key analytic failure in these cases, I would argue--and have argued (10)--is its failure to recognize that the right of group autonomy protected by the First Amendment (whether under the rubric of the Assembly Clause, as Professor Inazu convincingly argues it should be, or a under a nontextual right of association), while sharing common purposes with other First Amendment rights, is an independent and coequal right to the right of free speech. Assembly should be protected not because it is expressive, but because it independently advances the goals of the First Amendment--to say nothing of the fact that it is separately protected by the text of the First Amendment, without any hint that it is a subsidiary right to speech. Yet Professor Inazu's focus on the expressive nature of group membership as the reason for its protection seems to abandon that insight, and once again make assembly the handmaiden of speech. To the contrary, the reason private groups have a constitutional right to select their members and leaders is not because that selection is expressive, but because that selection is an essential aspect of assembly. It is indeed constitutive of assembly, since surely the right to assemble and associate is at core a right to choose whom to assemble and associate with. And again, the reason that the Constitution must protect such group choices is because a group which cannot define its own membership, leadership, and mission cannot play the critical roles that such groups must play in the process of self-governance. Groups whose membership is, to any significant extent, controlled by the government cannot possibly provide safe havens for citizens within which they can collectively organize, develop the skills needed for effective self-governance, and jointly develop their values and beliefs. Nor can such groups act as counterpoints to the power of the State, another essential role for such groups in maintaining the delicate balance between the People and the State that is at the heart of self-governance. The fact that group choices also have an expressive component is at best marginally relevant.

   Another point on which Professor Inazu and I diverge, which I suspect may point to some deeper disagreements, has to do with his analysis of the Supreme Court's decision in Lawrence v. Texas. (11)...