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In yesterday’s oral argument in AFP v. Bonta, Justice Kavanaugh asked if the right of assembly is distinct from the right to petition the government. Justices Barrett and Kagan hinted at similar questions. (1/11)
The question matters because of an 1886 Supreme Court decision, Presser v. Illinois, which concluded that the assembly right is protected only when “the purpose of the assembly was to petition the government for a redress of grievances.” (2/11)
Presser’s reading is wrong textually, historically, and jurisprudentially, yet it was followed in decades of legal scholarship. (3/11)
Perhaps most importantly, when the Court first recognized the right of association in its 1958 decision in NAACP v. Alabama, leading commentators at the time relied on Presser and an earlier decision, Cruikshank, to ignore or downplay the assembly roots of association. (4/11)
But as the briefing in NAACP v. Alabama made clear, the textual, historical, and jurisprudential roots of the right of association lie principally in the right of assembly. (5/11)
Today, subsequent cases like Roberts v. Jaycees and Boos v. Barry have crammed both associational and protest rights into a speech-based doctrinal framework. Those analyses neglect the constitutional significance of the right of assembly. (6/11)
One of the many reasons that assembly matters in AFP v. Bonta is that the Court never developed a workable framework for the right of association. (7/11)
But we know from earlier cases like De Jonge v. Oregon, Thomas v. Collins, Herndon v. Lowry, and Hague v. CIO that the right of assembly is both broad and fundamental. (8/11)
As the Court noted in Herndon, “the power of a state to abridge freedom of speech and of assembly is the exception rather than the rule.” (9/11)
In fact, in the 1930s, the significance of the right of assembly was evident in popular as well as legal discourse: assembly was widely recognized around the country as one of the basic “four freedoms” (before Roosevelt’s Four Freedoms Speech announced a different four). (10/11)
For more on the right of assembly, see my 2012 book, Liberty’s Refuge: The Forgotten Freedom of Assembly, available for free here under a creative commons license (11/11): https://www.jinazu.com/libertys-refuge
