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New year rings with freedom of assembly

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Gene Policinski
January 5, 2012

“Assembly” is a First Amendment freedom that typically doesn’t get much attention from the public, or from most constitutional experts, for that matter.


Just 14 percent of Americans in the latest State of the First Amendment survey by the First Amendment Center could name assembly as one of the five basic freedoms. But 2012 is picking up just where 2011 left off: Assembly is often at the top of the news, if not our collective mindset.


Fresh off the “Occupy” movement tactics involving plazas and parks, public employee unions, educators and others are making plans for election-year rallies at various statehouses over collective-bargaining limits, right-to-work laws and budget cuts. Anti-tax demonstrations have become staples of state legislative sessions.


In October, protesters on both sides of a Rhode Island state pension-revision plan held dueling demonstrations to shout their views. Similar gatherings made themselves heard from Maine to Maryland, Ohio to Wisconsin, California to New Jersey. Early in 2011, in Madison, Wis., tens of thousands of demonstrators occupied Statehouse halls for more than three weeks.


Public officials are taking notice. Quick, brusque attempts to oust Occupiers and block picketing in several states have been replaced by carefully drawn rules respecting the public’s right to gather over public matters, even as practical limits without regard to political views are placed on capacity, overnight camping and semi-permanent housing.


In the latest flap involving a flip from “you can’t” to “you can,” Indiana Gov. Mitch Daniels reversed a new regulation adopted by state police and public-safety officials that would have greatly limited the number of citizens who could enter the downtown Indianapolis Statehouse at one time.


One sticking point for critics of the new rule, which would have limited to 1,300 the number of nonstaffers permitted in the state hallways, was that 250 registered lobbyists with official passes would have been permitted at any time.


Daniels instructed state police to admit all visitors into the Statehouse, but also said that “if there comes a point where safety and security seems to be in jeopardy, they have my authority to do something different.”


Ironically, the Hoosier dispute resolution came on the 75th anniversary of a 1937 ruling by the U.S. Supreme Court that safeguarded the right of assembly in modern times. As my First Amendment Center colleague David L. Hudson Jr. noted, Justice Charles Evans Hughes said in De Jonge v. Oregon that assembly was a fundamental right comparable in every way to freedom of speech and of the press. Under the 14th Amendment, Hughes wrote, assembly deserves the same legal protection at the state and local levels as at the federal level.


Americans will have another way to voice their opinions this election year, at the ballot box. And from primary season breakfast rallies in myriad small towns to major political conventions, groups of like-minded voters will assemble to consider, nominate and support candidates who echo their beliefs.


At any given moment, tea party marchers, Occupiers and other demonstrators will inspire, infuriate, puzzle and motivate their fellow citizens. The nation’s Founders set up a system that provides for year-round public discussion in the “marketplace of ideas,” not limiting political and social discourse to just every four years.


Messy, noisy, even bothersome at times, to be sure. But assembly is a unique right that guarantees that our collective voices will, at the least, be heard in the halls of government.


Gene Policinski is senior 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.

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