The 1st Amendment to the U.S. Constitution guarantees “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The constitutional right of peaceful assembly means that people can gather in public to discuss their opinions about government or other concerns. This right of assemble also guarantees the right of association in groups, such as political parties, labor unions, and business organizations.

The right of petition means that individuals, acting alone or as part of a group, can freely send written criticisms or complaints to government officials. The right of petition also provides freedom to circulate documents for people to sign in order to demonstrate mass support for complaints against the government.

These fundamental freedoms of assembly and petition predate the U.S. Constitution, having their origins in the English legal heritage and the colonial governments of British North America. The English Bill of Rights of 1689 affirmed that “it is the right of the subjects to petition the King and all commitments and prosecutions for such petitioning are illegal." Forty-eight years earlier, in 1641, Section 12 of the Massachusetts Body of Liberties guaranteed freedom of speech and petition at public meetings, so that “Every man… shall have liberty to… present any necessary motion, complaint, petition, Bill or information."

From 1776 to 1783, the freedoms of assembly and petition were included in several of the original state constitutions, including the acclaimed Massachusetts Constitution of 1780, which greatly influenced the U.S. Constitution of 1787. By the 1780s, the twin freedoms of assembly and petition were recognized by Americans as rights of individuals that should be protected. Therefore, it would have been unusual if James Madison had not included them in his proposal to the first federal Congress, dated June 8, 1789, to add “the Great Rights of Mankind” to the Constitution.

In that address, Madison presciently said that “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution." Madison's prediction has proved correct, especially in this century, as the freedoms of assembly and petition, along with other fundamental constitutional rights of the people, have been protected by an independent federal judiciary using its power of judicial review.

First Amendment freedoms have been expanded through judicial interpretation throughout 200 years of American constitutional history, and today the rights of assembly and petition and, by extension, the right of association are protected against infringement by the states by the due process clause of the 14th Amendment. The Supreme Court affirmed these rights for the first time in Dejonge v. Oregon (1937) and Hague v. Congress of Industrial Organ izations (1939). In Dejonge, the Court ruled that the Oregon state government could not make it a crime for a member of a radical group, such as the Communist party, merely to conduct and participate in a public meeting. Writing for the Court, Chief Justice Charles Evans Hughes declared, “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental,” and “peaceable assembly for lawful discussion cannot be made a crime.”

In Hague, the Court struck down a Jersey City, New Jersey, ordinance requiring permits from a “director of public safety” in order to hold meetings in public places within the city or to distribute printed material in streets, parks, or other locations. The freedoms of assembly, association, and petition, like other constitutional rights, have limits. Justice Louis Brandeis wrote in 1927 (Whitney v. California), “Although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.” These limits must be justified, as Brandeis emphasized, by a compelling public interest. “Only an emergency can justify repression,” said Brandeis. “Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech [petition] and assembly by showing that there was no emergency justifying it.”

Citizens of a constitutional democracy will forever be challenged to decide what constitutes an “emergency justifying” a particular limitation upon freedom of expression. They must respond, case by case, to this broad question: At what point, and under what circumstances, should majority rule be limited by the higher law of the Constitution in order to protect the fundamental freedoms and rights of individuals in the minority, such as their rights of peaceable assembly, association, petition, and speech? Justice Oliver Wendell Holmes reminded us about the occasional difficulty of answering this question, when he wrote, in United States v. Schwimmer (1929), “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

An especially poignant example of Justice Holmes's “principle of free thought” was provided in Collin v. Smith (1978), a case decided by the U.S. Court of Appeals for the Seventh Circuit. In this decision, the federal appellate court decided to permit “followers of Nazism” flaunting the swastika to publicly and peaceably assemble to express their views in the village of Skokie, Illinois. In this decision, the court of appeals appeared to disregard the wishes of the majority in a community, as expressed by their representatives in government, who had passed ordinances prohibiting these American Nazis from publicly assembling to express their “hateful” political and social opinions. Judge Bernard Decker wrote:

In this case, a small group of zealots, openly professing to be followers of Nazism, have succeeded in exacerbating the emotions of a large segment of the citizens of the Village of Skokie who are bitterly opposed to their views and revolted by the prospect of this public appearance.

When feeling and tensions are at their highest peak, it is a temptation to reach for the exception to the rule announced by Mr. Justice Holmes,…freedom for the thought we hate.

Freedom of thought carries with it the freedom to speak and to publicly assemble to express one's thoughts….[I]t is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on a dangerous course of permitting the government to decide what its citizens must say and hear.

The U.S. Supreme Court refused to review the lower court decision in Collin v. Smith. Thus, Judge Decker's decision to overturn the Skokie ordinances was upheld.

This case presaged a heated controversy in the 1980s and 1990s about the limits of 1st Amendment freedoms of speech, press, assembly, association, and petition when these rights are used to assault the beliefs and sensitivities of vulnerable minorities, whether racial, ethnic, sexual, or religious. Exclusion from private organizations on the basis of race, ethnicity, religion, gender, or another category of personal characteristics has also raised questions about the latitude or limits of an individuals rights to association. Do people, for example, have an absolute right of association that permits them to exclude unwanted individuals from their organization? Or can one's right to freedom of association be limited by a state law forbidding discrimination? The Supreme Court ruled in Boy Scouts of America v. Dale (2000) that the 1st Amendment's protection of the right to freedom of association trumped New Jersey's state law against discrimination in public accommodations. The Boy Scouts, it was decided, have a constitutional right to exclude gay members because to include them would contradict the organization's “expressive message” that is, its widely known public identity, image, goals, and mission. The Court recognized that private organizations do not have an unlimited right to association and complete freedom from regulation based on compelling public interests, but in this case, the majority concluded that the law did not justify the state's restrictions of the “rights to freedom of expressive association” of the Boy Scouts.

Four members of the Court strongly disagreed with the majority's decision in the Boy Scouts case, and the dissent vealed the intensity of current debate about conflicts between private freedoms and public interests. We are challenged today to decide critical questions about how to balance the 1st Amendment rights of various types of individuals, including some who are hateful, with our sense of the public good.

See also Whitney v. California

Sources

• Fred W. Friendly and Martha J. N. Elliott, “Protecting the Thought That We Hate: Freedom of Speech and the Right of Peaceable Assembly,” in The Constitution: That Delicate Balance (New York: Random House, 1984)

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