Americans employ assembly in service to other freedoms

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Gene Policinski
Saturday, September 4, 2010

Americans sure have been assembling a lot lately—using a basic right that’s often overshadowed by its better-known First Amendment kin, particularly freedom of speech.

Even petition, the freedom least-often named by our fellow citizens in First Amendment Center surveys dating back to 1997, has stepped out more in public of late—from petitions in several states for or against gay marriage, to a recent U.S. Supreme Court decision involving release of the names of people who signed such a petition in Washington state.

The freedom of “assembly” is, for me, the workmanlike element of the First Amendment—most often not an end in itself, but the means and method by which Americans peaceably gather without government interference to develop, discuss and then express their beliefs or opinions.

Among the more-visible recent examples: In Murfreesboro, Tenn., a small group held a candlelight vigil Aug. 30 in support of the construction of a mosque in that town. An even-smaller set of critics gathered to challenge the religious motivation of the Muslim group funding the construction.

Two days earlier, a huge crowd gathered for Fox News commentator Glenn Beck’s much-discussed “Restore Honor” rally near the Lincoln Memorial, even as other groups also assembled in Washington, D.C., to commemorate the anniversary of the 1963 “I Have a Dream” speech by Dr. Martin Luther King Jr. to another mass rally at that same historic spot.

Union workers, anti-slavery advocates, civil rights activists, anti-war demonstrators and countless others have assembled and marched for their causes at various times in our history. Suffragettes marched in groups through streets throughout the nation, and for their efforts gained the 19th Amendment granting women the right to vote.

The freedom to assemble is not limited to groups with causes that have, or have eventually gained, majority support. In the 20th century, robed Ku Klux Klan members, American Nazis and other hate groups assembled and paraded their views—in later years facing counter-demonstrators who also have a legal right to “peaceably assemble” to express themselves.

But even this long-standing freedom has had its challenges.

In 1999, the U.S. Supreme Court overturned a Chicago anti-gang ordinance that allowed police to warn and then arrest individuals who “remained in any one place with no apparent purpose”—say, standing on a street corner—when in the company of a suspected gang member. The Court’s majority defended the public’s “freedom to loiter for innocent purposes.”

The right of assembly has run up against security concerns at national political conventions and at major economic summits, where local officials have created “free-speech zones” in an attempt to limit where protest groups may gather. At times, police have made large numbers of arrests only to release detainees later—moves that critics say have more to do with disrupting opposition assemblies than public safety.

Some new legal tactics have ratcheted up the tension between our right to assemble and what some perceive as public-safety concerns:

--Groups organizing conventions and conferences have purchased insurance policies for cities that will pay for settlement of wrongful arrest or related lawsuits after police “sweeps” aimed at taking protesters off the streets before or during those high-profile events.

--Police from Florida to Tennessee to California are pursuing civil lawsuits that result in court orders to individuals—often gang members—that ban them from certain areas. Police say such orders, which if violated may bring criminal charges, can be narrowly tailored to apply just to crime-fighting needs.

In both cases, there’s the danger that that even well-intentioned tools against gangs and/or mass violence can easily be used to stifle the inconvenient dissenter or the unpopular group. In a recent article in The Tennessean in Nashville, discussing the civil-order technique, a local lawyer warned, “If we start banning people that have certain associations from going certain places, what stops them from saying ‘Democrats really cause trouble in Centennial Park—let’s ban them.’”

Not that many years ago, some local governments joined powerful forces in communities to ban or break-up assemblies by women, African-Americans and labor unions—all of whom were seeking changes that the nation ultimately came to see not only as needed but necessary.

The freedom to assemble peaceably may be blue-collar kin to the other four freedoms in the First Amendment—but it’s no less red-white-and-blue.

Gene Policinski is vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

Last updated: 3:03 pm Thursday, December 13, 2012

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