First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The right of assembly was first before the Supreme Court in 18761 in United States v. Cruikshank.2 The Enforcement Act of 18703 forbade conspiring or going onto the highways or onto the premises of another to intimidate any other person from freely exercising and enjoying any right or privilege granted or secured by the Constitution of the United States. Defendants had been indicted under this Act on charges of having deprived certain citizens of their right to assemble together peaceably with other citizens “for a peaceful and lawful purpose.” Although the Court held the indictment inadequate because it did not allege that the attempted assembly was for a purpose related to the Federal Government, its dicta broadly declared the outlines of the right of assembly:

Absorption of the Assembly and Petition Clauses into the liberty protected by the Due Process Clause of the Fourteenth Amendment means that the Cruikshank limitation is no longer applicable.5 Today the right of peaceable assembly is, in the language of the Court, “cognate to those of free speech and free press and is equally fundamental.” 6 Broadly, the Court has said that the government may not proscribe “peaceable assembly for lawful discussion,” and even though participants may “have committed crimes elsewhere, . . . . mere participation in a peaceable assembly and a lawful public discussion” may not provide “the basis for a criminal charge” absent evidence that their speech “transcend[ed] the bounds of the freedom of speech which the Constitution protects.” 7

Illustrative of this expansion is Hague v. CIO,8 in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance that vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts, in an opinion that Justice Hugo Black joined and with which Chief Justice Charles Hughes concurred, described the right of assembly as one that “is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” 9 In Coates v. Cincinnati, the Court described the right of assembly as protecting “the right of the people to gather in public places for social or political purposes,” and struck down an ordinance prohibiting “annoying” assemblies as containing “an obvious invitation to discriminatory enforcement.” 10

Furthermore, the right of petition has also expanded beyond what might be implied by the language of “a redress of grievances.” For example, the Supreme Court has recognized that the clause protects a right of access to the courts, beyond just a right to petition the legislature.11 The clause also goes beyond a narrow idea of “grievances” and comprehends demands for an exercise by the government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters.12 The right extends to all departments of the government, including the “approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government.” 13

Later cases recognize overlap between the rights of assembly and petition and the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression.14 While certain conduct may still be denominated as either petition15 or assembly16 rather than speech, similar standards will likely be applied in most cases.17 For instance, as discussed in an earlier essay, where a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.18 In Borough of Duryea, Pennsylvania v. Guarnieri,19 the Court similarly held that a police chief who alleged retaliation for having filed a union grievance challenging his termination was not protected by the right to petition, because his complaints did not go to matters of public concern.20 Further, the right of assembly has largely been superseded by the Court’s recognition of an right of an implied right of association.21

Footnotes

1

See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868), in which the Court gave as one of its reasons for striking down a tax on persons leaving the state its infringement of the right of every citizen to come to the seat of government and to transact any business he might have with it.

2

92 U.S. 542 (1876).

3

Act of May 31, 1870, ch. 114, 16 Stat. 141 (1870).

4

United States v. Cruikshank, 92 U.S. 542, 552–53 (1876). See also Presser v. Illinois, 116 U.S. 252, 267 (1886) (describing Cruikshank as holding “that the right peaceably to assemble was not protected by the [ First Amendment] . . . , unless the purpose of the assembly was to petition the government for a redress of grievances” ).

5

De Jonge v. Oregon, 299 U.S. 353 (1937); Hague v. CIO, 307 U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941); Thomas v. Collins, 323 U.S. 516 (1945).

6

De Jonge, 299 U.S. at 364, 365. See also Herndon v. Lowry, 301 U.S. 242 (1937).

7

299 U.S. at 365.

8

307 U.S. at 496.

9

Id. at 515. For another holding that the right to petition is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact that defamatory statements were made in the context of a petition to government does not provide absolute immunity from libel).

10

Coates v. City of Cincinnati, 402 U.S. 611, 615–16 (1971).

11

See, e.g., Bill Johnson’s Rests. v. NLRB, 461 U.S. 731, 742–43 (1983) (holding that the First Amendment protects “[t]he filing and prosecution of a well-founded lawsuit” ); Lozman v. City of Riviera Beach, No. 17-21, slip op. at 12 (U.S. June 18, 2018) (outlining constitutional protections against retaliation for filing a lawsuit against a city); but see, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 556–57 (2014) (holding that the right to petition does not extend to grant immunity from an “exceptional” award of attorney’s fees in patent litigation).

12

See E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). For further discussion of the Noerr-Pennington doctrine providing limited antitrust immunity for constitutionally protected lobbying activity, see Amdt1.7.11.5 Lobbying.

13

Cal. Motor Trans. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913–15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir. 1980), cert. denied, 449 U.S. 842 (1980) (because of its political nature, a boycott of states not ratifying the Equal Rights Amendment may not be subjected to antitrust suits).

14

See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (noting “the close nexus between the freedoms of speech and assembly,” and saying the “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech” ).

15

E.g., United States v. Harriss, 347 U.S. 612 (1954); E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).

16

E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).

17

See, e.g., Borough of Duryea, Penn. v. Guarnieri, 564 U.S. 379, 388 (2011) ( “It is not necessary to say that the [Speech and Petition] Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground” ); But see id. ( “Courts should not presume there is always an essential equivalence in the [Speech and Petition] Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims” ).

18

Connick v. Myers, 461 U.S. 138 (1983); Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.

19

564 U.S. 379 (2011).

20

Justice Antonin Scalia, in dissent, disputed the majority’s suggestion that a petition need be of “public concern” to be protected, noting that the Petition Clause had historically been a route for seeking relief of private concerns. Id. at 382 (Scalia, J., dissenting). Justice Antonin Scalia also suggested that the Clause should be limited to petitions directed to an executive branch or legislature, and that grievances submitted to an adjudicatory body are not so protected. Id.

21

Amdt1.8.1 Overview of Freedom of Association.