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Freedom of Assembly or Association

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What is the “Freedom of Assembly”?

The freedom of assembly, commonly known as the “freedom of association”, protects individuals’ rights to assemble in groups for the purpose of expressing common beliefs or pursuing common interests. The right of assembly includes the right to physically assemble and the right to be a member of an organization. The right of physical assembly is commonly restricted by “time, place, and manner” restrictions. These restrictions must meet the highest level of scrutiny when determining whether such restrictions are constitutional.

  • Example: The government commonly requires permits or licensing for assembly. This is a limited regulation of the time, place, and manner of assembly. The application process cannot totally close off the assembly. But, it may require that the participants adhere to limited restrictions.

Discussion: Do you feel that common time, place, and manner restrictions on the freedom of assembly are overly burdensome? Or do you feel that this government authority is sufficiently extensive? Can you think of historical acts of assembly that were challenged based upon time, place, and manner or permit restrictions?

  • Input on Discussion: Anyone who has ever applied for a permit for a public assembly might argue that the time, place, and manner restrictions are overly burdensome. Those who have not might say that the common time, place and manner restrictions are not overly burdensome. In any event, the government may make special regulations that require additional requirements for assemblies that take place near public events. For instance, the government may block an assembly at which there is a clear indication of the danger of riot, interference with traffic on public streets, or threat to public safety. For example, on Saturday, September 5, 1998, the New York City denied a permit request by the Nation of Islam to hold a massive rally in Harlem, insisting that the rally be held instead on Randall’s Island. This is because Randall’s island was inaccessible by bus or subway and was virtually uninhabited. The Nation of Islam brought suit under the First Amendment, challenging the city’s imposition of Randall’s Island as the only permissible site for the rally. The court stressed that the Randall’s Island alternative was constitutionally inadequate because it thwarted the plaintiff’s access to its target audience, the residents of Harlem.

Practice Question: Beverly is interested in having a public rally protesting police brutality in the city. Public gatherings are generally limited to Monday through Saturday, but Beverly wants to hold the rally on Sunday. The city manager that approves requests for permits is adamantly against Beverly’s cause. He refuses Beverly a permit based upon the request for a Sunday date. Is there any issue with this situation?

  •     Proposed Answer: While Beverly has the right to freedom of assembly, the government also has the mandate to make time restrictions on public assemblies. In this case, the government allows public gatherings on Monday through Saturday. The City manager may well be justified in denying Beverly a permit to hold the public rally on Sunday. There is no information in this case that tells why a Sunday date is particularly necessary. Let’s suppose the government’s restrictions on Sunday are because most people worship on Sunday. Maintaining this ability for a large portion of the public is a valid government interest. Moreover, the government may want to impose limits on the noise level of the speech since the noise from the protest may disrupt services. This restriction may also have satisfied the 3 prong test which requires the restrictions to be: content neutral, the restriction must be narrowly tailored to serve a vital government interest, and lastly it must leave ample alternative channels for communicating the speaker’s message. In this case, Beverly should consider one of the days from Monday to Saturday.

Academic Research on Freedom of Assembly

Inazu, John D., The Forgotten Freedom of Assembly (August 24, 2009). Tulane Law Review, Vol. 84, p. 565, 2010. Available at SSRN: https://ssrn.com/abstract=1460903

Hamilton, Michael, Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-Limiting Principles in the Context of Transition (March 1, 2007). Oxford Journal of Legal Studies, Vol. 27, No.1, pp. 75-100, 2007. Available at SSRN: https://ssrn.com/abstract=1352347

Barnum, David, Freedom of Assembly and the Hostile Audience in Anglo-American Law (1981). 29 American Journal of Comparative Law 59 (1981). Available at SSRN: https://ssrn.com/abstract=2684123

 

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