In the past few months, protesters in Hong Kong have engaged in a citywide strike. In Lebanon, mass protests led to the prime minister’s resignation. In India, nationwide protests have defied government restrictions on public gatherings. Meanwhile, protesters in other parts of the world remain forcibly subdued—such as in Chinese “reeducation” camps and Saudi prisons. These examples, reflecting a range of lawful and unlawful assemblies, and the denial of assembly altogether, reveal the importance and the risks of the right to do so.
The right of assembly allows people to form and gather in groups of their choosing, and to publicly express their values and beliefs even when they conflict with the views of the majority. In the United States, this right finds an uneven reception: Groups of citizens regularly exercise it, but too often American political and cultural leaders ignore it. In recent years, state and local law officials illegally shut down protests in Ferguson, Missouri; the American Civil Liberties Union failed to support a protester outside a Massachusetts abortion clinic; and the New York Police Department sent undercover agents to infiltrate Muslim student groups. Public universities have deregistered Christian groups that wanted their members to share their beliefs, Republicans have threatened to strip Planned Parenthood of its tax-exempt status, and Democrats have pledged to do the same to conservative religious organizations. And President Donald Trump has attempted to limit political protests against him. Americans across the political spectrum confront restrictions and limitations on their right to assembly.
What went wrong with the protections for America’s public expressions and private groups, and why does it matter? Put simply, American law and practice have lost sight of the importance of protecting difference and dissent. Local officials too frequently end protests prematurely or move them to distant locations where they will be less effective. Lawmakers overregulate nonviolent groups that resist majoritarian norms. And many Americans cede too easily to the demands of conformity rather than pursuing and protecting alternative visions of society. As a result, many modern American protest movements lack the sustained engagement that unfolds elsewhere in the world.
Part of the problem is judicial inattention: The Supreme Court has not addressed the scope or meaning of the First Amendment’s “right of the people peaceably to assemble” since 1983. Instead, protests and demonstrations are now governed by free-speech doctrine, which ignores the right of assembly and neglects the importance of collective expression. Meanwhile, a core part of the right to assemble—the right to create private groups as part of civil society—falls mostly under the judicially recognized right of association. This right was first recognized by the Supreme Court only in 1958, with little analysis to support it. By cordoning off the right to form and maintain groups to a new and undertheorized right, the Supreme Court weakened both the right to assemble itself, and the intellectual discourse that gives it life.
The Founders had a different approach, as I document in my 2012 book, Liberty’s Refuge: The Forgotten Freedom of Assembly. In one of the lesser-known exchanges in the First Congress debating the Bill of Rights, Thomas Hartley of Pennsylvania sparred with Elbridge Gerry of Massachusetts about whether the First Amendment should include a right of assembly. The draft text then before the House of Representatives provided that “the people shall not be restrained from peaceably assembling and consulting for their common good.” Hartley endorsed that wording, suggesting that assembly should extend to “every thing that was not incompatible with the general good.” Gerry responded that if Hartley meant to say that the people merely “had a right to consult for the common good” but “could not consult unless they met for that purpose,” he was in fact “contend[ing] for nothing.” The First Congress soon dropped the common-good limitation.
As Gerry recognized, and the First Congress eventually acknowledged, a core purpose of the right of assembly is to allow people to resist majoritarian understandings of the common good. This basic recognition is an essential part of living in a diverse society where different beliefs lead citizens to different thoughts on what is best for their country, its people, and its communities. Despite widespread political invocations today of “the common good” by politicians and pundits, not everyone agrees on the purpose of the United States, the definition of a human being, or the nature of human flourishing. These are not small questions. Americans can identify certain political goods, such as interstate highways and national defense. But as the theologian Luke Bretherton has noted, attempting to name the common good of a nation as large and diverse as America “denies the plurality and contestability of moral visions in complex societies and the conflicts that arise in pursuit of divergent moral goods, all of which must be negotiated through politics.”
Negotiating conflicts through politics inevitably produces winners and losers—those elected to office and those defeated, those who benefit from policies and those who suffer under them. But no matter who prevails in the political process, a democratic government must protect the groups and spaces where people can continue to pursue and express their alternative visions of the common good. This commitment is not cost-free. The right to protest risks disruption, instability, and possible political change. The ability to form and maintain groups of people’s choosing means some groups will exclude those who don’t share their beliefs and values. Tolerating assemblies that do not advance majoritarian understandings of the common good means tolerating expression and practices that the majority may not like.
The right of assembly is as important today as it was at America’s founding, and in some ways the challenges to its lived expression have become only more difficult. President Trump’s rhetoric toward those opposing his policies signals an executive branch dismissive of dissent and disagreement. Public protests place enormous burdens on law enforcement in light of more powerful and more lethal weapons brandished by private citizens. At the same time, the increased militarization and surveillance tactics used by law enforcement burden protesters, bystanders, and journalists. Virtual assemblies that would have been unimaginable to the First Congress now connect Americans relationally and politically—and there is reason to doubt that the massive private corporations on which Americans depend for these online assemblies will extend the equivalent of First Amendment protections to their users.
A commitment to assembly is not without limits. For one thing, the First Amendment protects only the right of peaceable assembly. Under well-established law, local authorities and law enforcement can restrict assemblies that threaten imminent incitement to lawbreaking and violence. There is a good case to be made that the tiki-torch marchers in Charlottesville, Virginia, transgressed the bounds of peaceable assembly even prior to the death and destruction that followed. And when protesters against police violence shut down a highway or trespass onto private property, local law enforcement is well within its limits to intervene.
But these outer constraints still leave a lot of breathing room for difference and dissent. That breathing room will be secured only with bipartisan and cross-ideological support for the right of peaceable assembly, no matter the politics or party, no matter the discomfort or angst. America’s courts, legislatures, and local policy makers will need to revisit and revise laws and regulations affecting assemblies, including vague restrictions on “unlawful assembly.” And Americans of all political stripes can choose to exercise the right of assembly as a peaceable but firm reminder that e pluribus unum was always more aspirational than embodied, knowing that the many must still work to live together in spite of their differences.