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In the United States, freedom of assembly is one of the fundamental rights guaranteed to the American people. It is specifically guaranteed under the First Amendment to the U.S. Constitution in the Bill of Rights. As it is located in the Bill of Rights, it is considered a legal right, enforceable in the courts under 42 U.S.C. § 1983 and enforceable against the states under the Fourteenth Amendment. Freedom of assembly is distinct and different from freedom of association. Generally, freedom of assembly usually applies to the congregation of groups, and freedom of association applies to the rights of individuals to associate with other persons or entities.
A Political Right
However, it is not just a legal right; it is also a political right. The difference between the two is not just academic. A legal right is a right that is enforceable by the courts. In contrast, a purely political right is a right that is recognized in a political philosophy. There is frequently overlap between political and legal rights. Some political rights might be enforceable in a court. Others might not be enforceable.
A primary example of a political right would be the right to revolt. In the U.S. Declaration of Independence, it is expressly recognized that when a government becomes destructive of the unalienable rights of the people, the people have the right to alter or abolish it—that is, to revolt, which is exactly what colonial Americans did during the American Revolutionary War (1776–1783). However, no court in the United States of America has recognized or approved of the right to revolt, nor has any other court in any other nation. Indeed, if a court were to recognize such a right, it would essentially be permitting its own destruction. Thus, it is a purely political right.
An example of the qualitative difference and difference in enforceability between legal and political rights can be found in the decision of the U.S. Supreme Court in the case of Baker v. Carr (1962), wherein the Court recognized the various aspects of what constitutes a political question. More specifically, the U.S. Supreme Court recognized in the case of Luther v. Borden (1849) that it will not consider issues that are purely political in nature, such as whether a state has a republican form of government. This was an interesting situation addressing what is known as Dorr’s Rebellion, where a portion of the populace of Rhode Island attempted to establish its own government on the grounds that the regular government was not representative of the people and attempts at internal change were ineffective. Although the Court did not address the freedom of assembly in Luther, it is interesting to note that Dorr and his followers actually met to formulate their new government.
A Fundamental Right
Freedom of assembly, under the First Amendment, is a fundamental right that allows the people to peacefully assemble. The U.S. Supreme Court has presented three basic definitions of a fundamental right. The first is whether the right in question is a natural right under the principles of natural law, such as the right of self-defense as espoused by, for example, Sir William Blackstone, a famous English legal commentator, in his Commentaries on the Laws of England. The second is whether the right in question is fundamental to American justice and implicit in the concept of ordered liberty, as recognized in the case of Duncan v. Louisiana (1968), which was a case in which an African American was denied the right to a trial by jury. The third is whether the right is implied in the penumbra of the Bill of Rights, such as the right of privacy, as recognized in the case of Griswold v. Connecticut (1965) concerning access to birth control. The second meaning has been the most frequently cited by the American courts. As a practical matter, what is a fundamental right in America consists of the first ten amendments to the U.S. Constitution, as presented in the Bill of Rights, with some exceptions under the doctrine of selective incorporation, which mandates that most of the rights listed in the Bill of Rights are fundamental and are applicable against the states as well as the federal government.
In the decision of De Jonge v. Oregon (1937), the U.S. Supreme Court recognized that the primary purpose of the freedom to assemble includes the right to consult on public affairs and to petition for the redress of grievances. Thus, the basis of the freedom of assembly is to protect the political process, which is significantly dependent on the right to assemble. However, this does not mean that the freedom to assemble involves only consulting on public affairs or petitioning for the redress of grievances. There are other facets of political activity that fall within the freedom of assembly. Thus, it is clearly a political right, and it is enforceable in the courts as a legal right.
A Limited Right
The U.S. Supreme Court, in the decision of Kovacs v. Cooper (1102), recognized that all rights, even fundamental rights guaranteed under the Bill of Rights, are not absolute. Limitations can be imposed. One example is the requirement of licensing. It has been universally recognized across the United States that the government’s requiring some form of licensing for public demonstrations is constitutional and does not violate the right to assemble. However, such licensing cannot subject the participants to unreasonable limitations on the time, place, or manner of the public demonstrations.
A primary example of an appropriate limitation on the right to assemble is the crime of rioting. Although the people have the fundamental right to gather for political purposes, such a gathering must be peaceful. If the gathering becomes violent and disorderly, disturbing the general peace, then the participants will lose the protection of the right to assemble and be subject to criminal prosecution. However, even abhorrent ideas are protected by the freedom of assembly, as illustrated by the infamous Nazi parade in Skokie, Illinois, in 1977. The Skokie case involved a Nazi group’s attempting to parade in a significantly Jewish community. It brought the issue of the right to assemble to the forefront, even where the content or purpose of the assembly might be highly offensive to many people.
Political rights are recognized in international law. In the United Nations Charter, political rights are not specifically mentioned. However, in articles 1 and 55 of the charter, equal rights and the right to self-determination are jointly recognized; these are political rights, and as a practical matter, they cannot be implemented without the right to assemble. Furthermore, in article 21 of the International Covenant on Civil and Political Rights, the right to peacefully assemble is recognized. However, it must be realized that even though these rights are recognized in these international documents, the United Nations Charter is generally recognized to be aspirational as opposed to mandatory, and the covenant, even though it is a treaty, is not enforceable in American courts because of the numerous reservations made during its ratification. Thus, the issue of legal as opposed to political rights involving the right to assemble is a significant issue concerning international law.
- Dennison, George M. The Dorr War: Republicanism on Trial, 1831–1861.
- Leton: University of Kentucky Press, 1976.
- Gibson, James L., and Richard D. Bingham. Civil Liberties and Nazis:The Skokie Free Speech Controversy. New York: Praeger, 1985.
- Konvitz, Milton, ed. First Amendment Freedoms: Selected Cases on Freedom of Religion, Speech, Press, and Assembly. Ithaca, N.Y.: Cornell University Press, 1963.
- Shiffrin, Steven. The First Amendment: Democracy and Romance. Cambridge, Mass.: Harvard University Press, 1990.
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