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Lesson 30: How Does the First Amendment Protect Freedom to Assemble, Petition, and Associate?
Lesson Purpose
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When you have finished this lesson, you should be able to explain the importance of the rights to assemble, petition, and associate. You also should be able to describe the history of these rights and when they can be limited. Finally, you should be able to evaluate, take, and defend positions relating to the exercise of these three rights.
Lesson Objectives
- explain the importance of the rights to assemble, petition, and associate,
- describe the history of these rights and when they can be limited, and
- evaluate, take, and defend positions relating to the exercise of these three rights.
Lesson Terms
Lesson Biographies
Lesson Court Cases
Case Summary
On November 29, 1937, several individuals gathered at the headquarters of the Committee for Industrial Organization (CIO) in Jersey City, New Jersey to initiate a recruitment drive and discuss the National Labor Relations Act. Acting on the orders of Mayor Frank Hague, police seized the group's recruitment materials and refused to allow the meeting to take place. Hague argued that he was enforcing a 1930 city ordinance that forbade gatherings of groups that advocated obstruction of the government by unlawful means. Hague referred to CIO members as ""communists."" Arguing that the ordinance violated the First Amendment protection of freedom of assembly, the group filed suit against several city officials, including Hague. A district court and the United States Court of Appeals for the Third Circuit agreed and invalidated the ordinance.
Question(s)
Did enforcement of the 1930 Jersey City ordinance violate the CIO's right to assembly under the First Amendment?
Answer(s)
Yes. In a plurality opinion authored by Justice Owen J. Roberts, the Court concluded that the actions taken by police clearly violated the First Amendment, as applied to the states by the Fourteenth Amendment. ""Citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom."" Relying on the Court's previous ruling in the Slaughter House Cases, Justice Roberts wrote that freedom of assembly is ""a privilege inherent in citizenship of the United States"" and that no ""contrary view has ever been voiced"" by the Court.
See: The Oyez Project, Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)
Case Summary
On March 8, 1949, Irving Feiner, a white student at Syracuse University, made an inflammatory speech on a street corner in Syracuse, New York. During the speech, which was intended to encourage listeners to attend a leftist rally, Feiner made several disparaging remarks about local politicians, organizations, and President Truman. A crowd gathered, and several listeners began ""muttering"" and ""shoving."" One listener threatened Feiner. Two officers on the scene, fearing violence, asked Feiner twice to end his speech. After he refused, the officers arrested Feiner for inciting a breach of the peace. A trial court found Feiner guilty and sentenced him to thirty days in prison. On appeal, Feiner argued his arrest violated his right to free speech under the First Amendment. The Onondaga County Court and the New York Court of Appeals each denied his claim.
Question(s)
Did Feiner's arrest for inciting a breach of the peace violate his right to free speech under the First Amendment?
Answer(s)
No. In a 6-3 opinion authored by Chief Justice Fred Vinson, the Court applied the ""clear and present danger"" principle it originally articulated in Schenck v. United States (1919). According to the Court, Feiner's arrest was a valid exercise of ""the interest of the community in maintaining peace and order on its streets."" Chief Justice Vinson dismissed the notion that the arrest amounted to the suppression of free communication. ""It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.""
See: The Oyez Project, Feiner v. New York, 340 U.S. 315 (1951)
Case Summary
During hearings of the House Committee on Un-American Activities, Lloyd Barenblatt, a university professor, refused to answer questions concerning his political and religious beliefs along with his associational activities. He was found in contempt of Congress for failing to cooperate with the committee investigation.
Question(s)
Did the House Committee's investigation into Barenblatt's affiliations with the Communist Party transgress his First Amendment protections which limit congressional inquiries?
Answer(s)
No. The divided Court found that the Committee's actions did not violate the First Amendment and, thus, upheld Barenblatt's conviction for contempt of Congress. Justice Harlan noted that the First Amendment does not protect a witness from all lines of questioning. As long as the Congressional inquiry is pursued to "aid the legislative process" and to protect important government interests, then it is legitimate.
See: The Oyez Project, Barenblatt v. United States, 360 U.S. 109 (1959)
Case Summary
The 187 petitioners in this case, all of whom were black, organized a march to the South Carolina State House grounds in which small groups of fifteen would walk in an open public area protesting the policies of segregation in their state. The march was peaceful, did not block pedestrian or vehicular traffic, and was conducted in an orderly fashion on public property. A group of approximately thirty police officers confronted the group and ordered its members to disperse or to submit to arrest. The marchers did not disperse, and instead began singing religious and patriotic songs like "The Star Spangled Banner." They were arrested and later convicted on a charge of breach of the peace.
Question(s)
Did the arrests and convictions of the marchers violate their freedom of speech, assembly, and petition for redress of their grievances as protected by the First and Fourteenth Amendments?
Answer(s)
Yes. The Court held that the arrests and convictions violated the rights of the marchers. They were convicted of an offense which the South Carolina Supreme Court, in upholding the convictions, described as "not susceptible of exact definition." The evidence used to prosecute the marchers did not even remotely prove that their actions were violent. Hence, Justice Stewart found clear constitutional violations in this case. Stewart called the marchers' actions an exercise of First Amendment rights "in their most pristine and classic form" and emphasized that a state cannot "make criminal the peaceful expression of unpopular views" as South Carolina attempted to do here.
See: The Oyez Project, Edwards v. South Carolina, 372 U.S. 229 (1963)
Case Summary
The NAACP was prosecuted for violating a Virginia statute which banned "the improper solicitation of any legal or professional business."
Question(s)
Did the law, as applied to the NAACP's activities, violate the First and Fourteenth Amendments?
Answer(s)
Yes. The unanimous Court held that the activities of the NAACP amounted to "modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit." NAACP initiated litigation was "a form of political expression" and not "a technique of resolving private differences," argued Brennan.
Case Summary
As part of its strategy to prohibit the NAACP from operating, Alabama required it to reveal to the state's attorney general the names and addresses of all the NAACP's members and agents in the state.
Question(s)
Did Alabama's requirement violate the due process clause of the Fourteenth Amendment?
Answer(s)
Yes. The unanimous Court held that a compelled disclosure of the NAACP's membership lists would have the effect of suppressing legal association among the group's members. Nothing short of an "overriding valid interest of the State," something not present in this case, was needed to justify Alabama's actions.
See: The Oyez Project, NAACP v. Alabama, 357 U.S. 449 (1958)
Case Summary
When the Duarte chapter of Rotary International violated club policy by admitting three women into its active membership, its charter was revoked and it was expelled. The California Court of Appeals, however, in reversing a lower court decision, found that Rotary International's action violated a California civil rights act prohibiting sexual discrimination.
Question(s)
Did a law which required California Rotary Clubs to admit women members violate Rotary International's First Amendment rights of association?
Answer(s)
No. Considering the size, purpose, selectivity, and exclusivity of Rotary's membership, the Court found that the relationship among the club's members was not of the intimate or private variety which warrants First Amendment protection. Writing for the unanimous Court, Justice Powell argued that because many of Rotary's activities (including their meetings) are conducted in the presence of strangers, and because women members would not prevent the club from carrying out its purposes, there was no violation of associational rights. Furthermore, even if there were a slight encroachment on the rights of Rotarians to associate, that minimal infringement would be justified since it "serves the State's compelling interest" in ending sexual discrimination.
See: The Oyez Project, Rotary Int. v. Rotary Club, 481 U.S. 537 (1987)
Case Summary
New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock groups claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression.
Question(s)
Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment?
Answer(s)
No. The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some less-speech-restrictive alternative."
See: The Oyez Project, Ward v. Rock Against Racism, 491 U.S. 781 (1989)
Case Summary
The school administration at Westside High School denied permission to a group of students to form a Christian club with the same privileges and meeting terms as other Westside after-school student clubs. In addition to citing the Establishment Clause, Westside refused the club's formation because it lacked a faculty sponsor. When the school board upheld the administration's denial, Mergens and several other students sued. The students alleged that Westside's refusal violated the Equal Access Act, which requires that schools in receipt of federal funds provide "equal access" to student groups seeking to express "religious, political, philosophical, or other content" messages. On appeal from an adverse district court ruling, the court of appeals found in favor of the students, and the Supreme Court decided to hear the case.
Question(s)
Was Westside's prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act unconstitutional?
Answer(s)
No. In distinguishing between "curriculum" and "noncurriculum student groups," the Court held that since Westside permitted other noncurricular clubs, it was prohibited under the Equal Access Act from denying equal access to any after-school club based on the content of its speech. The proposed Christian club would be a noncurriculum group since no other course required students to become its members, its subject matter would not actually be taught in classes, it did not concern the school's cumulative body of courses, and its members would not receive academic credit for their participation. The Court added that the Equal Access Act was constitutional because it served an overriding secular purpose by prohibiting discrimination on the basis of philosophical, political, or other types of speech. As such, the Act protected the Christian club's formation even if its members engaged in religious discussions.
See: The Oyez Project, Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
Case Summary
Margaret Gilleo placed a 24-by-36-inch sign calling for peace in the Persian Gulf on her front lawn. The original sign disappeared and a subsequent sign was knocked down. She reported these incidents to the police who advised her that such signs were prohibited in the city of Ladue. She sued the city and the district court ordered a preliminary injunction. Ladue repealed the law and replaced it with a new one which also banned window signs. Gilleo then placed another anti-war sign in her second-story window and amended her complaint to challenge the new ordinance.
Question(s)
Does the Ladue ordinance violate Gilleo's right to free speech as protected by the First Amendment?
Answer(s)
Yes. Although acknowledging Ladue's police power to minimize visual clutter associated with signs, the Court ruled that the law "almost completely foreclosed a venerable means of communication that is both unique and important." The Court held a "special respect" for an individual's right to convey messages from her home.
Case Summary
Women's Health Center Inc. operated several abortion clinics throughout central Florida, including the Aware Woman Center for Choice in Melbourne, Florida. In 1992, in response to anti-abortion protesters, a state court prohibited the protesters from physically abusing those entering or exiting the clinic, or otherwise interfering with access to the clinic. About six months later, Women's Health Center Inc. expressed a need to broaden the court order. The state court agreed, banning demonstrators from entering a 36-foot buffer zone around the clinic, making excessive noise, using images visible to patients, approaching patients within a 300-foot radius of the clinic, and protesting within a 300-foot radius of staff residences. Petitioner Judy Madsen and her fellow protesters claimed that these restrictions violated their First Amendment right to free speech, but the Florida supreme court disagreed, upholding the court order.
Question(s)
1) Is the prohibition of all protesting within the 36-foot buffer zone around the front of the clinic an infringement of the First Amendment right to free speech? 2) Is the 36-foot buffer zone along the back and side of the clinic a breach of the First Amendment right to free speech? 3) Do the limitations imposed on noise-making constitute a breach of the First Amendment right to free speech? 4) Do the restrictions placed on the use of images violate the First Amendment right to free speech? 5) Is it a breach of the First Amendment right to free speech to bar protesters from approaching potential patients when they are within a 300-foot radius of the clinic? 6) Is it a violation of the First Amendment right to free speech to prohibit all protesting in a 300-foot radius of clinic staff residences?
Answer(s)
No, Yes, No, Yes, Yes, and Yes. In a majority opinion authored by Chief Justice William H. Rehnquist, the Court found that the state of Florida could only restrict protesters to the extent necessary to allow the clinic to run and the staff to live in their homes without interference. Thus, the majority approved of the 36-foot buffer zone around the front of the clinic because it was essential to allow patients and staff to enter and leave the building freely, but disapproved of the 36-foot buffer zone along the back and side of the building because it found no indication that protesting in these areas interfered with the function of the clinic. The Court also determined that the limitations placed on noise-making were necessary to insure the well-being of the patients, whereas those placed on images were not because they were easier to ignore. Finally, the Court concluded that both 300-foot radius rules were too broad, thus restricting the protestors more than was necessary. Therefore, the decision of the Florida Supreme Court was affirmed in part and reversed in part.
See: The Oyez Project, Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994)
Case Summary
In 1993, the South Boston Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick's Day Parade. The Council refused a place in the event for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). The group attempted to join to express its members' pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The Massachusetts State Court ordered the Veterans' Council to include GLIB under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The Veterans' Council claimed that forced inclusion of GLIB members in their privately-organized parade violated their free speech.
Question(s)
Did a Massachusetts State Court's mandate to Boston's Veterans' Council, requiring it to include GLIB members in its parade, violate the council's free speech rights as protected by the First and Fourteenth Amendments?
Answer(s)
Yes. A unanimous court held that the State Court's ruling to require private citizens who organize a parade to include a group expressing a message that the organizers do not wish to convey violates the First Amendment by making private speech to the public accommodation requirement. Such an action "violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say."
See: The Oyez Project, Hurley v. Irish American GLIB Association, 515 U.S. 557 (1995)
Case Summary
The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization discovered that Dale was homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The court's appellate division held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message.
Question(s)
Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders?
Answer(s)
Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
See: The Oyez Project, Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
Case Summary
Colorado practices an initiative-petition process in which citizens can make laws directly through balloting initiatives. Acting on behalf of ballot petitioners, the American Constitutional Law Foundation (Foundation) challenged the constitutionality of six limitations imposed by Colorado on the petitioning process. After mixed rulings in both trial and appellate courts, the Supreme Court agreed to review three of the six original restrictions. The first required petition circulators to be registered voters. The second required them to wear identification badges with their names, status as "volunteer" or "paid" and, if the latter, then their employer's phone number. The third required initiative proponents to report names, addresses, and registration voting counties for all paid circulators, as well as salary per petition signature, and each circulator's total salary. Proponents also had to report, on a monthly basis, all proponent names, names and addresses of circulators, circulators' monthly salary and debt totals, and the name of each proposed ballot measure.
Question(s)
Did the State of Colorado's imposition of name, badge, and financial disclosure requirements, on initiative-petition proponents and their circulators, violate the First Amendment's freedom of speech protections?
Answer(s)
Yes. In a 6-to-3 decision, the Court found the name, badge, and disclosure requirements to be unconstitutional. Weighing Colorado's need to protect the integrity of the initiative-petition process against the burdens that its guidelines placed on political expression, the Court found that the latter outweighed the former. Noting that the appellate court upheld a requirement that each circulator submit an affidavit setting out, among several particulars, his or her name and address, the Court explained that the vital information sought by the three additional restrictions at issue was already being secured either directly or indirectly.
See: The Oyez Project, Buckley v. American Constitutional Law Foundation Inc., 525 U.S. 182 (1999)
Case Summary
The Village of Stratton passed an ordinance that prohibits canvassers from entering private residential property to promote any cause without first obtaining a permit from the mayor's office. The Watchtower Bible and Tract Society of New York, Inc., a congregation of Jehovah's Witnesses that publishes and distributes religious materials, sought an injunction, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The district court upheld most provisions of the ordinance as valid, content-neutral regulations. The appellate court agreed, concluding that the Village's interests in protecting its residents from fraud and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation.
Question(s)
Does a municipal ordinance that requires a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?
Answer(s)
Yes. In an 8-1 opinion delivered by Justice John Paul Stevens, the Court held that the ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. The Court reasoned that the village's interest in preventing fraud could not support the ordinance's application to the religious organizations, to political campaigns, or to enlisting support for unpopular causes. Dissenting, Chief Justice William H. Rehnquist argued that the Court decision deprived Stratton residents of the degree of accountability and safety that the permit requirement provides.
Lesson Primary Sources
English translation of Magna Carta
Virginia Declaration of Rights
The Bill of Rights as it was submitted to the states for ratification. It included a preamble and ten proposed amendments to the U.S. Constitution.
A resolution of the House of Commons in 1669 guaranteeing the right to petition the lower house of Parliament.
From Wikipedia: The Equal Access Act is a U.S. federal law passed in 1984 to compel federally-funded secondary schools to provide equal access to extracurricular clubs. Lobbied for by religious groups who wanted to ensure students the right to conduct Bible study programs during lunch and after school, it is also essential in litigation regarding the right of students to form gay-straight alliances.
A review of American representational government in the 1830s, focusing on the reasons for success in America versus attempts and failures in other places. The work was borne from a young Tocqueville and Gustave de Beaumont having been sent by the French government to study the American prison system. Their notes included other aspects of American society, including political life.
The Habeas Corpus Act 1679 is an act of the English Parliament defining the habeas corpus process, by which a detainee who has petitioned the judiciary must either be set free or have a charge brought against him. The act follows the Habeas Corpus Act 1640, by which an order from the king or Privy Council was deemed insufficient as a response to a petition of habeas corpus.
The Star Chamber was a court that heard criminal and civil cases against prominent Englishmen, who, it was believed, would not receive a fair trial in the regular courts. In 1641, it was abolished by Parliament with the Habeas Corpus Act of 1640, after controversial incidents with religious dissenters and having become known for its secrecy, misuse and abuse of power.
Act passed by the British Parliament in 1689 enumerating rights of British subjects and residents. A restating of the Declaration of Right presented to William and Mary a year prior, it guarantees the right to petition the monarch, bear arms for defense, and outlines some requirements for the monarch to seek consent of the people through Parliament.
The oldest continuously functioning constitution in the world, the Massachusetts Constitution provided the framework followed by the United States Constitution. It went into effect on October 25, 1780.
From Wikipedia: Magna Carta, is an English legal charter, originally issued in 1215, the first document ever served to an English king by his subjects. Magna Carta required King John to proclaim certain rights, respect certain legal procedures, and accept that his will could be restricted by the law. It explicitly protected certain rights of the King's subjects and supported what became the writ of habeas corpus, allowing appeal against unlawful imprisonment. Magna Carta was arguably the most significant early influence on the extensive historical process that led to the rule of constitutional law today in the much of the world.
From Wikipedia: The Massachusetts Body of Liberties was the first legal code to be instituted by European colonists in New England. The laws were established by the Massachusetts General Court in 1641 and include both positive and negative rights.
From Wikipedia: The Petition of Right is a major English constitutional document, which sets out specific liberties of the subject that the king is prohibited from infringing. The Petition is most notable for its confirmation of the principles that taxes can be levied only by Parliament, that martial law may not be imposed in time of peace, and that prisoners must be able to challenge the legitimacy of their detentions through the writ of habeas corpus. Additionally, the Petition's ban on the billeting of troops is reflected in the Third Amendment to the U.S. Constitution.
From Wikipedia: In the United States, the Bill of Rights is the name by which the first ten amendments to the U.S. Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had been ratified by three quarters of the states. It responded largely to Anti-Federalists who believed that ratifying the U.S. Constitution meant surrendering basic human rights of individuals.
The supreme law of the United States that provides the framework for the government. The Constitution outlines the nation's institutions of government and the most important rights of the people. The document was created in 1787 during the Philadelphia Convention. The government created by the Constitution took effect on March 4, 1789.
From Wikipedia: The Ohio Constitution is the basic governing document of the State of Ohio, which in 1803 became the 17th state to join the United States. The constitution adopted in 1802 is the first of four the state has had and provided for a relatively weak governorship and powerful bicameral legislature.
The Constitution of the State of Alaska is the basic governing document of the State of Alaska, which was ratified in 1956 and took effect in 1959 when Alaska became the 50th state to join the United States. Prior to its passage, Alaskan citizens were not afforded rights many Americans enjoyed and was also considered to benefit Alaska's statehood movement.
