The Forgotten Freedom of Assembly
The Forgotten Freedom of Assembly
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The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called “the right of peaceable assembly” part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This Article explores the history of the freedom of assembly and what we may have lost in losing sight of that history.
I. INTRODUCTION ………………………………………………………………….. 566 II. THE CONSTITUTIONAL RIGHT OF ASSEMBLY ………………………… 571
A. The Common Good ………………………………………………….. 571 B. Assembly and Petition ……………………………………………….. 573
III. THE FIRST TEST OF ASSEMBLY: THE DEMOCRATIC- REPUBLICAN SOCIETIES ……………………………………………………… 577
IV. ASSEMBLY IN THE ANTEBELLUM ERA ………………………………….. 581 V. ASSEMBLY MISCONSTRUED ………………………………………………… 588 VI. ASSEMBLY IN THE PROGRESSIVE ERA ………………………………….. 590
A. Suffragists ………………………………………………………………… 591 B. Civil Rights Activism ………………………………………………… 592 C. Organized Labor ……………………………………………………….. 593
VII. THE INTER-WAR YEARS AND THE RISE OF THE FREEDOM OF ASSEMBLY ……………………………………………………………………. 595 A. A New Conception of the First Amendment………………… 596 B. New Challenges to Labor ………………………………………….. 598 C. Assembly Made Applicable to the States …………………….. 599 D. Hague v. Committee for Industrial Organization ………….. 599 E. The Four Freedoms …………………………………………………… 601
VIII. THE RHETORIC OF ASSEMBLY …………………………………………… 603
* © 2010 John D. Inazu. Public Law Fellow, Duke University School of Law. J.D., Duke University School of Law; Ph.D., University of North Carolina at Chapel Hill. Thanks to Jeff Spinner-Halev, Michael Lienesch, Susan Bickford, Jeff Powell, Stanley Hauerwas, Nathan Chapman, Seth Dowland, Roman Hoyos, Jason Mazzone, Tabatha Abu El-Haj, Kelsey Meeks Duncan, and Amin Aminfar for comments on earlier versions of this Article.
566 TULANE LAW REVIEW [Vol. 84:565 IX. THE RISE OF ASSOCIATION AND THE END OF ASSEMBLY ………… 606 X. CONCLUSION …………………………………………………………………….. 611
I. INTRODUCTION
The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called “the right of peaceable assembly” part of “the Constitutional substitute for revolu- tion.”1 In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.”2 But in the past thirty years, the freedom of assembly has been reduced to a historical footnote in American political theory and law. Why has assembly so utterly disappeared from our democratic fabric? One might, with good reason, contend that the right of assembly has been subsumed into the rights of speech and association and that these two rights provide adequate protection for the people gathered. On this account, contemporary free speech doctrine protects the “most pristine and classic form” of assembly—the occasional gathering of temporary duration that often takes the form of a protest, parade, or demonstration.3 Meanwhile, the judicially recognized right of association shelters forms of assembly that extend across time and place—groups like clubs, churches, and social organizations. This characterization of the rights of speech and association is not implausible. Indeed, it appears to be the approach assumed by a
1. Letter from Abraham Lincoln to Alexander H. Stephens (Jan. 19, 1860), in UNCOLLECTED LETTERS OF ABRAHAM LINCOLN 127 (Gilbert A. Tracy ed., 1917). In the same letter, Lincoln also wrote: “[T]he right of peaceable assembly and of petition and by article Fifth of the Constitution, the right of amendment, is the Constitutional substitute for revolution. Here is our Magna Carta not wrested by Barons from King John, but the free gift of states to the nation they create . . . .” Id. 2. JOHN RAWLS, A THEORY OF JUSTICE 53 (1971). Rawls relies primarily on association rather than assembly in his later work. See, e.g., JOHN RAWLS, POLITICAL LIBERALISM 221 n.8, 291, 338, 418 (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]. But cf. id. at 335 (mentioning assembly). 3. Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (“most pristine and classic form”).
2010] FORGOTTEN FREEDOM OF ASSEMBLY 567 number of contemporary political theorists.4 Nevertheless, I want to suggest that something is lost when assembly is dichotomously construed as either a moment of expression (when it is viewed as speech) or an expressionless group (when it is viewed as association). Many group expressions are only made intelligible by the practices that give them meaning. The rituals and liturgy of religious worship often embody deeper meaning than that which would be ascribed to them by an outside observer. The political significance of a women’s pageant in the 1920s would be lost without an understanding of why these women gathered or what they were doing with the rest of their lives. And the creeds and songs recited by members of hundreds of diverse associations, from Alcoholics Anonymous to the Boy Scouts, during their gatherings may reflect a way of living and system of beliefs that cannot be captured by a text or its utterance at any one event.5 The United States Supreme Court has partially recognized these connections in the category of “expressive association” that it introduced in Roberts v. United States Jaycees.6 But by privileging “intimate” over expressive association and declaring the latter merely instrumentally valuable to other modes of communication, the Court has obfuscated the critical role that a group’s practices and identity play in its expression. Even worse, the attenuated protections of expressive association underwrite a political theory whose espoused tolerance ends with those groups that challenge the fundamental assumptions of the liberal state. These changes open the door for the state to demand what Nancy Rosenblum has called a “logic of congru- ence” requiring “that the internal life and organization of associations mirror liberal democratic principles and practices.”7 William Galston intimates that this result undermines liberalism itself: “Liberalism requires a robust though rebuttable presumption in favor of individuals and groups leading their lives as they see fit, within a broad range of legitimate variation, in accordance with their
4. See, e.g., STEPHEN MACEDO, LIBERAL VIRTUES: CITIZENSHIP, VIRTUE, AND COMMUNITY IN LIBERAL CONSTITUTIONALISM (1990); FREEDOM OF ASSOCIATION (Amy Gutmann ed., 1998); RAWLS, POLITICAL LIBERALISM, supra note 2. 5. This argument is not meant to be universal. Some assemblies that gather in single instances of fixed duration may present a relatively coherent message absent any collective background identity. A group of strangers that gathers in front of a prison to protest an execution is one example. 6. Roberts v. U.S. Jaycees, 468 U.S. 609, 618, 622 (1984). 7. NANCY L. ROSENBLUM, MEMBERSHIP AND MORALS: THE PERSONAL USES OF PLURALISM IN AMERICA 37 (1998).
568 TULANE LAW REVIEW [Vol. 84:565 own understanding of what gives life meaning and value.”8 We do not live under Galston’s “rebuttable presumption.” If we did, we might hear more about polygamist Mormons, communist schoolteachers, all- male Jaycees, and peyote-consuming Native Americans. And while today’s cultural and legal climate raises the most serious challenges to practices at odds with liberal democratic values, the eclectic collection of groups that have at one time or another been silenced and stilled by the state cuts across political and ideological boundaries. The freedom of assembly has opposed these incursions throughout our nation’s history. As C. Edwin Baker has argued, “[T]he function of constitu- tional rights, and more specifically the role of the right of assembly, is to protect self-expressive, nonviolent, noncoercive conduct from majority norms or political balancing and even to permit people to be offensive, annoying, or challenging to dominant norms.”9 This core role of assembly and its broad appeal to groups of markedly different ideologies makes it a better “fit” than the right of association within our nation’s legal and political heritage.10 Recognizing this fit requires learning the story of the right of assembly. This is no easy task. The right of association is now firmly entrenched in our legal and political vernacular. Consider the following: (1) at least twenty-five federal district and appellate court opinions have referred to a nonexistent “freedom of association clause” in the United States Constitution;11 (2) a federal appellate court has denied associational protections to an all-male Jewish fraternity after intimating that the fraternity was neither an intimate nor an
8. WILLIAM A. GALSTON, LIBERAL PLURALISM: THE IMPLICATIONS OF VALUE PLURALISM FOR POLITICAL THEORY AND PRACTICE 3 (2002). 9. C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 134 (1989). 10. By “fit,” I mean to suggest the coherence with an ongoing tradition and social practice intimated in different ways by both Ronald Dworkin and Alasdair MacIntyre. See RONALD DWORKIN, LAW’S EMPIRE (1986); ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (3d ed., Univ. Notre Dame Press 2007) (1981). 11. See, e.g., Swanson v. City of Bruce, No. 03-60541, 2004 WL 1491594, at *3 (5th Cir. July 1, 2004) (referring to “the freedom of association clause”); Boyle v. County of Allegheny, 139 F.3d 386, 394 (3d Cir. 1998) (asserting that the plurality opinion in Elrod v. Burns, 427 U.S. 347 (1976), “held that the discharge of a government employee because of his political affiliation violates the freedom of association clause of the First Amendment”); Darnell v. Campbell County Fiscal Court, No. 90-5453, 1991 WL 11255 (6th Cir. Feb. 1, 1991) (discussing the requirements for a prima facie case under “the freedom of association clause of the first amendment”); Grace United Methodist Church v. City of Cheyenne, 235 F. Supp. 2d 1186, 1203 (D. Wyo. 2006) (“The First Amendment’s Free Speech Clause and Freedom of Association Clauses apply to the states through the Fourteenth Amendment.”); Hyman v. City of Louisville, 132 F. Supp. 2d 528, 543 (W.D. Ky. 2001) (“The Supreme Court has interpreted the First Amendment to provide little protection under the Freedom of Association Clause to commercial enterprises.”).
2010] FORGOTTEN FREEDOM OF ASSEMBLY 569 expressive association;12 and (3) a well-respected commentator has argued that in sixteen years, Roberts came to represent “a well-settled law of freedom of association,” an “ancien regime.”13 In this context, it takes effort to envision an alternative understanding of the constitutional protections for groups. Accordingly, part of my task is to cast a vision for recovering the freedom of assembly. Doing so requires creative engagement with regnant legal doctrine and political theory, particularly that espoused by the Supreme Court and its commentators over the past half-century. But this is a task worth doing. Constitutional language—and the ways in which we use it or ignore it—matters to the views we form about the law. Words like “assembly” and “association” by themselves convey little of the values that underlie the inevitable line-drawing that takes place around our civil liberties,14 but in our constitutional story, these words come to represent the values that helped to shape them and give them constitutional salience.15 Forgetting words may represent the final stage of forgetting values; reclaiming words can be a first step to reclaiming those values.
12. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136 (2d Cir. 2007). The fraternity was located at the College of Staten Island, which is “primarily a commuter campus,” and it never had more than twenty members. Id. at 140, 145. 13. ANDREW KOPPELMAN, A RIGHT TO DISCRIMINATE?: HOW THE CASE OF BOY SCOUTS OF AMERICA V. JAMES DALE WARPED THE LAW OF FREE ASSOCIATION, at xi (2009) (arguing that Boy Scouts of America v. Dale, 530 U.S. 640 (2000), “disrupted” the law of freedom of association). Koppelman acknowledges the “germinal case” of the right of association in NAACP v. Alabama, 357 U.S. 449 (1958), see KOPPELMAN, supra, at 18-22, but it is clear that Roberts rather than NAACP v. Alabama does most of the work that he wants to embrace as the “well-settled law of freedom of association.” 14. I do not presume that unbounded group autonomy is either preferable or possible. To borrow from Stanley Fish, there is “no such thing as free assembly.” The state always constrains. The pertinent inquiry is therefore not whether the state can constrain group autonomy, but the conditions under which those constraints will be imposed. See STANLEY FISH, THERE’S NO SUCH THING AS FREE SPEECH, AND IT’S A GOOD THING, TOO 104 (1994) (“Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict.”); cf. Peter de Marneffe, Rights, Reasons, and Freedom of Association, in FREEDOM OF ASSOCIATION, supra note 4, AT 146 (“Some may think of rights as ‘absolute,’ believing that to say that there is a right to some liberty is to say that the government may not interfere with this liberty for any reason. But if this is how rights are understood, there are virtually no rights to liberty—because for virtually every liberty there will be some morally sufficient reason for the government to interfere with it.”). 15. Frederick Schauer uses the phrase “constitutional salience” to refer to “the often mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces that influence which policy questions surface as constitutional issues and which do not.” Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1768 (2004).
