SHOW NOTES EP #22: MINI SERIES PART 6 FIRST AMENDMENT DEEP DIVE

INTRODUCTION

Hello and welcome to Learning the Law, a podcast about all things legal with a focus on current events where we try to teach you things in an hour. My name is Ashley aka PhoenixNymphy and my co-host who is the man of the hour, my husband Ron. This podcast is purely educational and should not be taken as legal advice, this podcast does not create an attorney-client relationship, this podcast is based on his interpretation of relevant law. Any opinions expressed are the opinions of the individual making them and do not reflect the opinions of any firm, company, or other individuals. Ron is a licensed practicing attorney in the state of California.

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Itinerary

  1. Our Weeks
  2. Questions from the audience (if there are any)
    1. Riot Games
  3. Topic of the week – 1st Amendment
    1. What does the 1st Amendment actually say: 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 to peaceably to assemble, and to petition the Government for a redress of grievances

B. The right to peacefully assemble

The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights. 

Both rights have been at the heart of controversies for much of our country’s history, from picketing strikers in the 1930s to civil rights sit-ins in the 1960s and Black Lives Matter protests in the 2020s, from KKK rallies in the 1920s to white supremacist marches (and riots) in the 21st Century. But the right to gather with others isn’t limited to political protests. It can also include simply hanging out with friends in public.

While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.” 

Assembly is the only right in the First Amendment that requires more than a lone individual for its exercise. One can speak alone; one cannot assemble alone. Moreover, while some assemblies occur spontaneously, most do not. For this reason, the assembly right extends to preparatory activity leading up to the physical act of assembling, protections later recognized by the Supreme Court as a distinct “right of association,” which does not appear in the text of the First Amendment.

The right of assembly often involves non-verbal communication (including the message conveyed by the very existence of the group). A demonstration, picket-line, or parade conveys more than the words on a placard or the chants of the crowd. Assembly is, moreover, truly “free,” since it allows individuals to engage in mass communication powered solely by “sweat equity.” 

In 1876, the Supreme Court ruled in US v. Cruikshanks that Assembly meant a gathering related to a federal government purpose or grievance.

The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. 

When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

The Court further elaborated in Hague v. CIO, 307 U.S. 496 (1939)15 in which the Court 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. 

That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder (Cantwell v. Connecticut, 310 U.S. 296 (1940))

However, as part of a wave of anti-protest legislation that picked up steam in 2021, some states have passed laws criminalizing protests that block traffic, even temporarily. For instance, laws in Oklahoma and Florida make it a crime to obstruct the normal use of roadways, including by simply standing in the street. Those same laws also extended protections to drivers who hit protesters. (Okla. H.B. 1674 (2021); Fla. H.B. 1 (2021).) It’s not yet clear whether courts will find these laws to be constitutional.

In an attempt to mitigate surging infection and hospitalization rates during the surges in the Covid-19 pandemic, public officials issued emergency orders limiting the size of public gatherings and closures or restrictions on certain businesses. In response to those orders, residents, businesses, and other organizations filed lawsuits claiming that the restrictions violated their constitutional rights, including the right to gather. In many—but not all—of these cases, the lower courts denied the plaintiffs’ requests for injunctions to prevent enforcement of the restrictions, finding that the emergency orders met the requirements for content-neutral restrictions on the time, place, and manner of gathering (discussed below).

There hasn’t been a definitive appellate court ruling on the issue of whether these orders violated the right to gather. (The U.S. Supreme Court ruled in late 2020 and early 2021 that two states’ restrictions on attendance at religious services during the pandemic could not be enforced, but those rulings were based on freedom of religion rather than the right to gather.)

Some limitations:

  • The public square. There’s less leeway to restrict demonstrations and other gatherings in places that are traditionally considered “public forums” for free expression—such as sidewalks, parks, and public squares—than on other types of public property like military installations, prisons, courthouses, and airport terminals.
  • Size limits. A federal court struck down an ordinance that limited the size of most gatherings in front of New York City Hall and the adjacent plaza, except for city-sponsored public events. As the court pointed out, the ordinance wasn’t narrowly tailored to serve the city’s legitimate safety concerns, and it could allow city officials to stop people from gathering based on their point of view. (Housing Works, Inc. v. Safir, 101 F.Supp.2d 163 (S.D. N.Y. 2000).) However (as discussed above), some courts have looked more favorably at temporary, emergency restrictions on the size of public gatherings intended to limit the spread of Covid-19.
  • Permits. Generally, cities and other governmental bodies (like public universities) are allowed to require groups to get permits for demonstrations, parades, street festivals, and other large gatherings. But courts have struck down these requirements when they impose higher fees or other obstacles linked to the demonstrators’ controversial viewpoints and the expected response. (See, for example, Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992).)
  • Curfews. As a general rule, courts allow curfews—which usually restrict people’s right to gather at nighttime—when public officials have declared an emergency, the curfews are needed to keep order due to immediate threats to life or property, and the restrictions are temporary.
  • Buffer zones. When it comes to laws aimed at keeping anti-abortion demonstrators a certain distance away from clinic entrances and patients, the U.S. Supreme Court has allowed some buffer-zone restrictions while striking down others. The different outcomes usually turn on whether a law is designed to serve important public objectives (like protecting privacy and access to medical facilities) without putting too many limits on the rights of protestors (see, for instance, Hill v. Colorado, 530 U.S. 703 (2000) and McCullen v. Coakley, 573 U.S. 464 (2014).) Of course, different outcomes may also depend on the changing makeup of the Court.

Redress of grievances

The right to petition the government for redress of grievances means the right to ask a governmental body to solve a problem.

the right of petition has expanded. It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but 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. The right extends to 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. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”

The right to petition includes under its umbrella the legal right to sue the government, and the right of individuals, groups and possibly corporations to lobby the government.

Sovereign Immunity

Closing

Thank you so much for listening to learning the law. If you liked this podcast and want to hear more, don’t forget to like, subscribe, follow, and share in all your favorite places. You can find it hosted live on twitch at twitch.tv/phoenixnymphy and use the hashtag #learningthelaw on social media to follow in more places. You can find Ron on twitter at Necrokijo and Ashley at PhoenixNymphy. If you have any questions please tweet, comment, or email at twolazydogsmedia@gmail.com. This has been a Two Lazy Dogs production.

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