Freedom of Assembly and Petition

The Bill of Rights consists of the first ten amendments to the U.S. Constitution. The Framers developed them to preserve civil liberties and limit the power of government. The First Amendment reflects these democratic ideals. It reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Congress is prohibited from enacting laws that infringe upon the constitutional freedoms guaranteed by the First Amendment.

They include:

• Freedom of religion

• Freedom of speech

• Freedom of the press

• Freedom of assembly

• Freedom of petition

We often refer to these as the five pillars of the First Amendment.

Interpretation of the First Amendment

As the ultimate interpreter of the Constitution, the U.S. Supreme Court interprets these rights. Through the Fourteenth Amendment’s due process clause and the doctrine of incorporation, the Court has determined this First Amendment prohibition on Congress extends to the states. Thus, the First Amendment protects these rights from government restrictions of any kind at any level.

Indeed, these rights are not without limits. The Supreme Court has ruled that they must be weighed against valid governmental interests, such as maintaining public order and safety.

This can be a delicate balance, and government restrictions on these freedoms often face First Amendment challenges. The freedoms of petition and assembly are no exception.

First Amendment Rights of Assembly and Petition

The right of assembly protects people’s freedom to gather on public property, including public forums like parks and sidewalks, to engage in expressive activities. This can include protests, planning meetings, and other social or political purposes.

The right to petition protects the people’s right to communicate directly with government officials. This can be to complain, request action, share a viewpoint, or anything else.

The modern Supreme Court often treats both rights as addressed by an expansive interpretation of the free speech clause. These later Supreme Court cases acknowledge the overlap between several First Amendment freedoms.

The Court has also recognized that freedom of expression may very well encompass the rights of assembly and petition, as well as the rights to free speech and a free press. Though actions may still be designated as either assembly or petition, similar standards will generally apply for evaluating restrictions on these freedoms.

For example, the First Amendment restricts government action interfering with private First Amendment rights. It doesn’t restrict government regulation of government speech or expression. And it doesn’t generally apply to restrictions imposed by private entities.

As such, a government employee who brings a First Amendment action against their employer must show they were speaking or acting as a private individual about a matter of public concern.

Freedom of Association

The First Amendment doesn’t mention freedom of association. However, the Court has acknowledged it as a First Amendment right. The Court reasoned that the freedom of association is an essential “means of preserving” other freedoms explicitly included in the First Amendment. In other words, the Court has recognized the people’s right to associate to engage in “speech, assembly, petition for the redress of grievances, and the exercise of religion.”

However, this has not always been the case.

United States v. Cruikshank

The Supreme Court first addressed the right of assembly in United States v. Cruikshank (1876). The Cruikshank Court overturned the convictions of several KKK members who participated in the Colfax Massacres in which 100 African Americans were killed.

Cruikshank and others were charged under the Enforcement Act of 1870 for conspiring to deprive the victims of their constitutional right to assemble peaceably. The Court explained that the charges didn’t allege that victims were trying to assemble for a purpose related to the national government.

Without such a purpose, the Court explained, the victims’ peaceful assembly wasn’t protected by the First Amendment. The Court reasoned that the constitutional right to assemble protects rights granted by national citizenship, which wasn’t the case here.

The Court’s dicta explained that the First Amendment “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone.”

The Court held the same to be true about the Second Amendment right to bear arms. Specifically, it protects only against interference by the federal government.

Still, the Cruikshank Court affirmed that the right of peaceable assembly “is, and always has been, one of the attributes of citizenship under a free government.”

DeJonge v. Oregon

The DeJonge v. Oregon (1937) Court effectively removed the Cruikshank limitation on First Amendment protections for the right to assemble. In DeJonge, the Court explained the freedom of assembly protects “the holding of meetings for peaceable political action” or any lawful discussion.  

It described this right as “cognate to those of free speech and free press and is equally fundamental.”

The Court’s recognition of the right of assembly as “equally fundamental” eliminated the Cruikshank limitation. It limited state power by rendering the First Amendment right of assembly applicable to the states.

The Court explained that unless speech and discussion at a peaceful assembly exceed the bounds of constitutionally protected free speech, assembling for lawful discussion may not be criminalized.

Thomas v. Collins

In Thomas v. Collins (1945), the Court struck down a Texas law prohibiting unions from soliciting new members without obtaining a permit. Following his conviction for speaking at a public rally, a union organizer challenged the law on First Amendment grounds.

The Court held that speech protected by the First Amendment can be expressed at an assembly, by petition, or in many other forms. The Thomas Court reasoned that the right of union organizers to inform people about the benefits of union membership “is protected not only as part of free speech, but as part of free assembly.”

The Thomas Court explained that although the rights to free speech and a free press aren’t the same as the rights to assemble and petition, they are inseparable.

History of the Right to Petition

The right to petition derives from the Magna Carta (1215), the royal charter of English liberties. The Bill of Rights Framers included this right partly because King George III persistently disregarded the founders’ petitions or complaints.

The Framers sought to ensure that the new government in America would be receptive to the concerns of its citizens. The right to petition is based on the principle that democracy necessitates the people’s ability to voice their concerns freely and directly with government officials.

The movement gained prominence as petitions to abolish slavery in Washington, D.C., flooded into Congress during the 1830s. The House of Representatives ignored these petitions and even adopted a gag rule. It stated,

“That no petition, memorial, resolution, or other paper praying the abolition of slavery in the District of Columbia, or any State or Territories of the United States in which it now exists, shall be received by this House, or entertained in any way whatever.”

Former President John Quincy Adams, later elected to the House of Representatives, spent years fighting this rule to preserve the constitutional right to petition. He saw it as the right to hold the government accountable.

And he insisted it was necessary if the government established by the Constitution would survive. Adams ultimately succeeded in repealing the gag rule and restoring Americans’ right to petition the government.

The Right to Petition

Lobbying is one example of exercising the right to petition. Essentially, lobbying consists of attempts to persuade a government official to take a particular action, and it is protected by the First Amendment.

However, the Court has determined that Congress may regulate lobbyists. In 1954, the Court reasoned that to preserve the integrity of government, elected officials need certain information about those hired to influence Congress. Regulation that requires registration, disclosures, and reporting is necessary for lawmakers to evaluate the innumerable pressures to which they’re regularly subjected.

The Court has also recognized that the right of petition extends beyond grievances. It can include demands on the government to exercise its power and authority to advance people’s interests and viewpoints regarding controversial political matters.

The Court clarified that a representative democracy such as ours requires that the people be able to “freely inform the government of their wishes.” After all, the idea behind representative government depends on the people’s ability to make their wishes known to their representatives.

As such, this expanded right to petition extends to all departments and branches of government. Likewise, the Court has held that the right to petition protects a right to access the court system.

McDonald v. Smith

In McDonald v. Smith (1985), the Court unanimously held that the First Amendment petition clause doesn’t provide immunity from otherwise illegal acts. Robert McDonald sent letters to the president and other government officials opposing David Smith’s appointment as U.S. attorney.

The letters included false allegations that Smith engaged in fraud, blackmail, civil rights violations, and other allegations. Smith lost the appointment. He sued McDonald for defamation.

McDonald asserted his right of petition, which gave him immunity from such charges. The Court disagreed.

It explained that the inclusion of defamatory statements in a petition to a government official doesn’t provide any immunity. The Court said, “Although the values in the right of petition as an important aspect of self-government are beyond question, it does not follow that the Framers of the First Amendment believed that the Petition Clause provided absolute immunity from damages for libel.”

The First Amendment rights to assembly and petition stem from a rather rich history and commitment to democratic principles. However, as interpreted, their protection and treatment align closely with freedom of speech and offer insight that seems to build upon the body of case law addressing expansive freedom of expression.