First Amendment Rights of Assembly, Petition and Association, Module 4 of 5

Module 4: First Amendment Rights of Assembly, Petition and Association

The First Amendment protects more than freedom of speech and religion. The rights to peaceably assembly and petition (which means protest) are in the text of the Amendment and freedom to associate (or not associate) with whom one chooses has been inferred from the Amendment.

Still, government entities and universities have the right to restrict certain exercises of all of these First Amendment rights by time, place and manner restrictions, if the restrictions are content neutral and serve an overarching governmental interest.  In this module, we will discuss these rights and how they may be restricted.

The Right to Peaceably Assemble

The First Amendment states that “Congress shall make no law… abridging… the right of the people peaceably to assemble….” The Supreme Court has held that this section of the First Amendment protects the right of people to conduct a peaceful public assembly.[1] Freedom of assembly is a part of the DNA of American existence. The first Supreme Court case to discuss this issue dates back to 1876.[2] There, the Court said: “The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs….” The Fourteenth Amendment applies First Amendment freedoms to the states and most states include protections for the right of assembly in their state constitutions.  

Nevertheless, courts have granted governments the right to limit public assemblies under some circumstances. Government officials cannot simply prohibit a public assembly just because they feel like it,[3] but governments can impose restrictions on the time, place, and manner of peaceful assembly, as long as certain constitutional safeguards are met.[4]  Restrictions on the time, place, and manner of public assembly are permissible so long as they “are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”[5]

Courts have allowed restrictions on free assembly in the form of permit requirements.[6] Applications for those permits can be required in advance of a planned assembly.[7]

Different jurisdictions have different permit requirements. For instance, Washington, D.C., requires a special permit for group gatherings from the police department.[8] New York City requires a temporary assembly permit only for crowds of over 200 people.[9] San Francisco’s process goes through its dedicated Parks and Recreation Department.[10]

Most cities require a very detailed application. For example, Chicago requires an applicant for a permit for a public assembly to indicate (among other things) the date, time and location of the proposed assembly; the name and address of the on-site manager and twenty-four-hour contact information for the event organizer. It also requires the estimated number of attendees and the basis for that estimate.[11] 

Governments can also make special or temporary regulations that impose additional requirements for assemblies like protests and counter-protests that take place near major public events,[12] like presidential visits or political party conventions.

The right to free assembly also protects union-organizing under the National Labor Relations Act, even though the limitations on those assemblies generally come from corporations rather than government agencies.[13]

However, the state may place reasonable limits on the right to assemble based on factors other than expression. For example, the Court held that city-wide restrictions on age in dance halls did not violate the right to free assembly.[14]

Freedom of Association

Freedom of speech and expression imply the right to freely associate with anyone one wants to. While we may take that right for granted, it is one that is not specifically enumerated in the First Amendment. It was carved out by courts less than 100 years ago as a natural outgrowth of the rights of free speech and assembly that actually are enumerated rights.  

The first Supreme Court decision on the issue comes from a 1958 case that arose from the civil rights movement of the 1950’s and 1960’s.[15] A court in Alabama had held the NAACP in contempt for refusing to turn over a member list to the state. The Supreme Court found that the state had no right to compel this disclosure.

The court observed, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.”

In the following years, the Court struck down more statutes, regulations and court orders that would have forced organizations to reveal members,[16] force teachers to reveal memberships in organizations[17] and even a state court order barring the NAACP from operating in the state.[18] The Court extended this right to labor unions in other cases.[19]

In a controversial 2000 case, Boy Scouts of America v. Dale, the Supreme Court held that freedom of association included the right of a private organization to discriminate. There, a New Jersey statute that would have forced the Boy Scouts to accept gay scoutmasters was struck down because the Boy Scouts were a private organization and had the right to associate with whomever they chose.[20] Augusta National Golf Club, host of the Masters golf tournament, one of four annual “major” golf tournaments and the only club in the world to host a “major” tournament every year, did not admit a female member until 2012 and government authorities were powerless to do anything about this blatantly discriminatory policy.[21] Still, it should be noted that Congress can (and does) outlaw discrimination in public accommodations under its power to regulate interstate commerce.[22]

Freedom of association does not, however, necessarily extend to a college campus. The Supreme Court has ruled that school policy can keep college groups such as fraternities and clubs from discriminating.[23]

Moreover, these rules change when it comes to politics, because the compelling state interest in making sure that elections are fair and proper often outweighs other considerations. Political parties are seen to be state actors and can be restricted accordingly.

People have the right to form and join political parties.[24] But beyond that, numerous restrictions on those parties and their members have been upheld. For instance, while the NAACP could not be forced to submit a membership list in a case we discussed a little while ago, political parties were forced to do so under the Federal Election Campaign Act of 1974. The Court upheld this provision.[25]

Political parties may limit membership however they want, up to and including loyalty tests, but they can be regulated if they appear on a state ballot. At that point, they are state actors and so, for example, racially motivated restrictions may (and, in fact, must) be forbidden.  

State laws[26] and national party procedures[27] can also determine how a party’s primary can be run. Still, the Supreme Court has held that freedom of association allows a candidate to list a party affiliation on a ballot even if that candidate is not officially affiliated with the party.[28] Bernie Sanders, for example, did this in 2016 when, though nominally an independent, he ran in the Democratic primaries.

Time, Place and Manner Restrictions on Protests

Dating back to when it was common for people to make impromptu speeches to express political ideas in public parks and gathering places, (often, while standing on overturned soap crates, hence the term “soapbox”)[29] these public areas have had special free speech protections in British and later American society.

Still, as the government must control numerous spaces like parks, streets and military bases where people gather and talk to one another, the courts have held that there is a point at which some speech can be restricted to some degree in these spaces to ensure that they are and can be used appropriately by everyone. 

An early mention of a right to free speech on government-controlled property comes from Hague v. Committee for Industrial Organization,[30] a 1939 case that is also cited for other free speech principles and which overturned a ban on citizen’s groups holding public meetings on government-owned property. In that case, Justice Owen. J. Roberts wrote:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

The term “public forum” began appearing in Supreme Court decisions in the mid- 1970’s, in two cases that delineated two kinds of government-owned properties: public space (such as a park or city-owned theater)[31] and nonpublic (such as a school or military base).[32]

In the theatre case, the Court ruled that the City of Chattanooga could not ban a production of the musical Hair in a city facility. The Court wrote that the city-owned theaters were “public forums designed for and dedicated to expressive activities.” But in the case of speech on a military base, the Court ruled that public demonstrations at Fort Dix could be restricted. The Court further held in another case that: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”[33]

In 1983, the Court tried to clarify the issue when it laid out three categories of public forums.[34]

-       Traditional public forums;

-       limited, or designated, public forums; and

-       nonpublic forums.

Each of those categories can have speech restrictions, but to different degrees. Speech in an open-air forum like a park or street corner is most protected and is subject to the fewest restrictions. Content cannot generally be restricted in these areas. The middle, limited or designated public forums (such as concert halls owned by the state), is a little trickier. Those forums can have speech restricted based on how conducive the property is to public speech in the first place, something that is determined case-by-case.[35] For example, in one federal case, a library was barred from banning a church meeting on its premises.[36] Non-public forums, such as military bases, may can have the most restrictions on free speech. As long as the restriction is “viewpoint” neutral, pretty much any speech restriction on a military base will be allowed.

The Supreme Court, incidentally, has decided that the internet is a public forum.[37]

Government speech

Much of the speech that takes place on government property is “government speech,” which means speech that promotes a government agenda. It is not limited or affected by the First Amendment per se, but it does butt up against other First Amendment rights. For instance, government speech is restricted by the establishment of religion clause.[38]  

Courts look at four factors to determine if something is government speech: (1) the central purpose of the program in which the speech in question occurs; (2) the degree of editorial control exercised by the government or private entities over the content of the speech; (3) the identity of the literal speaker; and (4) whether the government or the private entity bears the ultimate responsibility for the content of the speech.[39] Something considered government speech may be controlled more tightly by the government than other speech. After all, it’s one thing to say that people are free to speak their minds, but quite another to be free to speak their minds on behalf of the government.

For example, the Supreme Court ruled in 2015 that a Texas specialty license plate program did not create a public forum, but instead was protected government speech.[40] The state was allowed to keep Texans from obtaining license plates with Confederate flags. Although people certainly have the right to display the “stars and bars” if they so choose, there is no First Amendment right to do so in speech that represents the state of Texas.  

However, note that the government speech defense was unsuccessfully asserted when the Supreme Court ruled that a rock band could not be denied a trademark on its name because the copyright office found the name offensive.[41]

Online Speech and “Free Speech” Zones

In Packingham v. North Carolina¸ the Supreme Court decided that the state could not keep a person from accessing the internet because the internet is a public forum. However, once you’re on the internet, you do not have a First Amendment right to post anything you want.

That is because Facebook, Twitter, Reddit and other social media outlets are privately owned forums. Those platforms can ban anybody’s speech or presence based on their own Terms of Service, just as your father can ban you from giving political opinions at his dinner table. The same is true of privately-owned television networks. Commentators do not have a First Amendment right to say what they want without fear of advertiser rebellion and boycott.

At the same time, public officials may not be able to block people from posting on their sites. One federal appeals court held that Facebook is a public forum and that a politician could not block a constituent from her Facebook page.[42]

Another time and place speech restriction that has met with mixed success is the “free speech zone,” which purports to designate areas in which people can gather to demonstrate, limiting the right to demonstrate in other areas. They arose on college campuses in the 1980’s in response to the chaotic and sometimes deadly college protests of the 1960’s and 70’s. They have since been expanded to other entities like cities, and to other situations like buffer zones around abortion clinics. A free speech zone may, for example, limit demonstrations to one location on a campus or near a clinic.

Free speech zones are generally opposed by free speech advocates, who have had success challenging them.[43] Challenges to these zone designations were successfully settled at New Mexico State University in 2000 and West Virginia University in 2002, as both of those abandoned designating free speech zones.  

Schools and cities also have had little success defending them in court.[44] In fact, some courts have held that students have more right to free speech on campus than does the general public.[45] Free speech zones have been criticized and attacked in court by parties from all along  the political spectrum as an unnecessary and burdensome restriction on free speech and have been banned in a number of states.[46] The director of the Brechner Center for Freedom of Information at the University of Florida[47] has said, “Every public college in America is going to do away with the notion of free-speech zones.”

In our last module, we will discuss a First Amendment right closely related to freedom of speech: freedom of the press.