Assembly and association, freedom of
Description: The right of the people to gather peaceably and to associate with anyone they desire.
Significance: The Supreme Court has generally upheld the freedom of assembly and association, although it has upheld time, place, and manner restrictions on demonstrations, picketing, and similar gatherings.
The First Amendment to the Constitution prohibits Congress from making any law that limits “the right of the people peaceably to assemble,” but the Constitution does not mention freedom of association. Freedom of association has been inferred, however, from freedom of assembly, and the guarantees of the Bill of Rights, of which the First Amendment is part, have been inferred to apply to the states. Therefore, subject to the interpretation of the Supreme Court, all laws, whether state or federal, that unduly restrict freedom of assembly and association are unconstitutional. The only explicit restriction on these freedoms is the word “peaceably”; mobs and other groups intent on violence or destruction of property lie outside constitutional protection, as do picketers who physically oppose those who wish to cross picket lines. The freedoms also impinge on trespassing laws that protect the rights of private owners of property, resulting in issues of legal interpretation. Additionally, the Court has upheld laws requiring the licensing of parades and other large assemblies that, although taking place in public areas, may disrupt traffic or otherwise place an undue burden on local authorities. The Court has made further distinctions between public and private places. Quasi-public or quasi-private places, such as college campuses and privately owned areas open to the general public, have been defined regarding the limitations of the right of assembly. How such limitations are to be interpreted and applied have been and continue to be the subject of litigation that is often controversial.
The general standard that the Court applies to the question of the right of assembly is the same that it applies to speech: time, place, and manner. For example, the noisy demonstration that is legal in a park outside a public library may be considered illegal if it takes place inside the library. As the Court stated in United States Postal Service v. Greenburgh Civic Associations (1981): “The First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” This statement should be compared, however, with one from Hague v. Congress of Industrial Organizations (1939), that whether streets or parks are publicly or privately owned, “they have immemorially been held in trust for the use of the public for purposes of assembly and discussing public questions.” The conflict between these two statements is to be resolved by examination of the intent that the government has in limiting the assembly in question. In Perry Education Association v. Perry Local Educators’ Association (1983), the Court stated that the government may “reserve a forum for its intended purposes as long as the regulation is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.” Perry concerned a dispute between two teachers’ unions. Under the employment contract, Perry Educational Association (PEA) had access to the interschool mail system and teacher mail boxes. The bargaining agreement also provided that access rights to the mail facilities were not available to any rival union. A rival union, Perry Local Educators’ Association filed suit, contending that PEA's preferential access to the internal mail system violated the First Amendment. The Supreme Court ruled that the PEA's contract provision did not violate the First Amendment. Freedom of association in particular, political association, including membership in communist organizations has been examined in similar ways. In such cases as Yates v. United States (1957), the Court explicitly rejected the idea that membership in a group indicates guilt by association. Communist groups are not the only ones whose memberships were subject to government scrutiny. In National Association for the Advancement of Colored People v. Alabama (1958), for example, the National Association for the Advancement of Colored People was able to enforce its right to free and private association, in particular to keep its membership rolls out of the hands of Alabama officials. Such protection, however, does not extend to groups that a government can demonstrate are engaged in illegal activities. The Court has upheld the careful application of federal antigang laws that make it a crime to belong to a group engaged in criminal enterprise. Private organizations that discriminate according to sex, race, or other criteria have defended themselves on First Amendment grounds, with varying degrees of success. In general, the Court has placed greater emphasis on laws against discrimination than on the right to association, especially regarding large associations that have few restrictions on membership. In Roberts v. United States Jaycees (1984), the Court reasoned that the Jaycees lacked the distinctive characteristics, such as small size, identifiable purpose, selectivity in membership, and perhaps seclusion from the public eye that might afford constitutional protection to the organization's exclusion of women. In Rotary International v. Rotary Club of Duarte (1987), the Court upheld a California law that prevented Rotary International from excluding women from membership, and in New York State Club Association v. City of New York (1988), the Court upheld a New York City law prohibiting discrimination based on race, creed, sex, and other categories in places “of public accommodation, resort, or amusement.” The court held that the law applied to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. A landmark case touching on freedom of association is Griswold v. Connecticut (1965). Griswold gave medical advice to married people regarding birth control and was convicted of breaking a Connecticut law prohibiting the use of birth control and the giving of medical advice about birth control. The Supreme Court declared the Connecticut law an unconstitutional violation of the right of privacy. The Constitution makes no mention of such a right, but in Griswold the Court reasoned that such a right flowed from the right to association. Put broadly, the government did not have the authority to tell people what they could talk about with whom. Thus the “right to be left alone is the beginning of all freedoms” could be inferred to freedom of association. Abortion clinic protests, specifically the tactics employed by those opposed to abortion to prevent entrance to clinics, have generated various cases touching on freedom of assembly. In Bray v. Alexandria Clinic (1993), for example, the Court held that picketers in front of an abortion clinic did not violate the rights of those accessing the clinic to equal protection of the law because the picketers’ methods did not rise to the level of “hinderance” considered illegal. On the other hand, the convictions of abortion clinic protesters who are too aggressive in their methods, particularly those that rise to physical confrontation, have been upheld in various courts.
- Abernathy, M. Glenn. The Right of Assembly and Association. Columbia: University of South Carolina Press, 1981.
- Bresler, Robert J. Freedom of Association: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2004.
- Gutmann, Amy, ed. Freedom of Association. Princeton, N.J.: Princeton University Press, 1998.
- Murphy, Paul L. Rights of Assembly, Petition, Arms, and Just Compensation. New York: Garland, 1990.
- Rohde, Stephen F. Freedom of Assembly. New York: Facts On File, 2005.
- Shiffrin, Steven H., and Jesse H. Choper. The First Amendment: Cases, Comments, Questions. St. Paul, Minn.: West Publishing, 1996.