When people hold a town meeting to complain about a local problem, such as poor road conditions, they exercise the right to freedom of assembly. So do people who gather to protest unfair treatment of racial minorities, such as African Americans. As long as a group is not breaking the law, freedom of assembly protects its right to have such meetings. It prevents the government from stopping the meeting, even if the government or its citizens do not like the group or its reason for gathering.
The freedom of association is a separate right that is related to the freedom of assembly. An assembly can be an informal meeting, such as citizens who gather at a state capitol to protest a law. An association, however, is usually a formal organization devoted to a particular cause or group of people. The National Rifle Association, for example, supports the right to own and use firearms. The freedom of association protects our right to form and join such organizations.
The freedom of assembly comes from the U.S. Constitution's First Amendment, which says "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble." The First Amendment is part of the Bill of Rights, which contains the first ten amendments to the Constitution. The United States adopted the Bill of Rights in 1791 to prevent the federal government from interfering with important individual rights, including the freedom of assembly. Although the First Amendment does not mention the freedom of association, the U.S. Supreme Court decided it also is a First Amendment right.
The Bill of Rights applies only to the federal government, so state governments did not have to obey the First Amendment for a long time. Then in 1868, after the Civil War (1861-1865) ended, the United States adopted the Fourteenth Amendment. Part of it says that states may not "deprive any person of life, liberty or property without due process of law." Over time, the Supreme Court decided that "liberty" in the Fourteenth Amendment refers to many of the rights in the Bill of Rights. Because of this, state governments today must honor the freedoms of assembly and association.
Expanding the right to assemble
At first, the freedom of assembly protected only the right to petition the government, which means to ask the government to take particular action. Before the United States declared independence from Britain in 1776, the British king often refused to hear the American colonists' wishes and demands. The Americans who adopted the First Amendment wanted to make sure the U.S. government would listen to its citizens.
Over time, however, the freedom of assembly has grown to protect groups that gather to express their ideas without petitioning the government. For example, De Jonge v. Oregon (1937) was about a Communist Party member named Dirk De Jonge. (The Communist Party is a political organization that favors ownership of property by communities or the government instead of by individual people.) De Jonge organized a meeting of the party in Portland, Oregon, to protest police brutality against workers who went on strike. (A strike is when employees stop work to protest poor working conditions, such as low pay or unsafe factories.) At the meeting De Jonge sold pamphlets about communism. Although the meeting was peaceful, an Oregon court convicted De Jonge of breaking a law prohibiting efforts to change business or government by violence. The U.S. Supreme Court reversed the conviction, saying there was no evidence De Jonge had advocated violence and that "peaceable assembly for lawful discussion cannot be made a crime."
The right to freedom of assembly also protects the least popular groups, even those that offend or outrage most citizens. For example, in Smith v. Collin (1978), the courts ordered the Chicago suburb of Skokie, Illinois, to allow the American Nazi Party to march in neighborhoods where tens of thousands of Jewish persons lived. This angered many people because under Adolf Hitler, the German Nazi government killed millions of Jews during World War II (1939-1945); this mass killing is known as the Holocaust. Some Jews who survived the Holocaust lived in the Skokie neighborhoods where the American Nazi Party was allowed to march. For the freedom of assembly to survive, however, it must protect not only people and ideas that most of us consider good but also those we despise.
The freedom of assembly is not unlimited. The government may limit the freedom if the instance under consideration satisfies three conditions. First, the limitation must serve an important governmental interest. For example, a law preventing people from gathering to start a violent revolution is valid.
Second, the limitation must be content neutral. This means it must not control assemblies based on the kinds of people who gather, their reason for gathering, or their beliefs. A law preventing people from gathering to support flag burning, for example, would violate the freedom of assembly.
Third, the limitation must restrict the freedom of assembly as little as possible to serve the important governmental interest. In Cox v. New Hampshire (1941), for instance, the Supreme Court decided that the government may require permits for parading on public streets. As long as it issues the permits without discrimination (treating different groups unequally), the government may control the time, place, and manner of assemblies for the sake of public safety and convenience.
Freedom of association
The First Amendment does not mention the freedom of association. The Supreme Court, however, decided it is a First Amendment right because it is closely related to the First Amendment freedoms of speech and assembly. It did so in NAACP v. Alabama ex rel. Patterson (1958), a case that grew out of the African American struggle for civil rights in the 1950s. (Civil rights are those protected by the U.S. Constitution, especially the Bill of Rights.) The National Association for the Advancement of Colored People (NAACP) was a leader in that struggle. The government of Alabama opposed the civil rights movement and tried to stop the NAACP from operating in the state.
To accomplish this, Alabama attorney general John Patterson determined that the NAACP had not registered to operate in Alabama. To shut it down, Patterson got a court order requiring the NAACP to provide a list of its members. When the NAACP refused in order to protect its members' privacy, the court held the NAACP in contempt (in violation of a court order) and told it to stop operating in Alabama until it produced the list.
The U.S. Supreme Court reversed this ruling. It announced "that the freedom to engage in association for the advancement of beliefs and ideas" cannot be separated from the freedom of speech. That freedom also includes membership privacy, especially for associations with unpopular beliefs. Requiring unpopular groups to share membership lists may result in harm to some members. That would discourage people from exercising their freedom of association.
Like the freedom of assembly, the freedom of association is not unlimited. Governments may restrict it under the same three conditions explained above. For example, in Communist Party of the United States v. Subversive Activities Control Board (1961), the Supreme Court said the federal government may require the Communist Party of America to register with the U.S. attorney general and reveal the names of its officers. The Supreme Court said this does not violate the freedom of association because the Communist Party supported violent revolution against the federal government. Preventing a violent revolution is an important governmental interest.
The freedom of association also includes the freedom not to associate. This means people cannot be forced to join organizations that are contrary to their beliefs. In Abood v. Detroit Board of Education (1977), the Supreme Court ruled that school board employees in Detroit, Michigan, could not be forced to join a union and pay union dues. (A union is an organization that protects workers' rights.)
The right not to associate also is limited. The Supreme Court decided that governments may fight discrimination by forcing public associations to allow certain groups of people to become members. For example, in Roberts v. U.S. Jaycees (1984), the Supreme Court decided that a national association dedicated to developing young men's civic organizations could be forced to accept female members.
Even with some limitations, however, the freedoms of assembly and association are an important part of every Americans' right to say and believe what they want.
Suggestions for further reading
King, David C. Freedom of Assembly. Brookfield, CT: Millbrook Press, 1997.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.
Did this raise a question for you?