The Right to Assemble

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.

Michael W. Flynn
4-minute read

There are several facets to this area of law. The first is that the government cannot generally place restrictions on the content of the speech, or the reason for which citizens might assemble. So, it would be unconstitutional to ban the dissemination of pamphlets that seek donations to the Ku Klux Klan. While people might disagree with the KKK and its speech, the government cannot create any rule where the KKK is censored. The Supreme Court has long acknowledged that the remedy for repugnant speech is not government censorship, but simply more speech. The remedy is to allow the KKK to speak and assemble, and also to allow other citizens who disagree with the KKK to speak back, and to assemble to protest the KKK.  

While the government cannot restrict what is said, it can restrict where and when it is said. While speech and assembly are fundamentally important to a free and democratic society, the Supreme Court has recognized that a government’s ability to keep order is sometimes more important.  Imagine what would happen if the government had no power to control speech. Then, a protest group would have the right to stand in the middle of a public highway during rush hour, blocking traffic and shutting down commerce. Or, the protest group could stand in the middle of the town square with a megaphone and bellow through the night, waking people up and disturbing them in their homes.  

The Supreme Court has struck a balance between these competing goals of free speech and keeping order. The Court has held that the government may place reasonable restrictions on the time, the place, and the manner in which people speak and assemble. So, the government can limit the hours of assembly in a public park so long as that limitation is reasonable. Courts have consistently held that shutting down public parks at night is a reasonable thing to do, even if it means that people will not be able to utilize the park to assemble. A court would not likely look favorably on a rule that only allowed groups to protest from 10:37 to 11:18 on alternate Thursdays because this rule would limit speech in an unreasonable manner, and in a way that has no rational connection to the government’s legitimate interest in maintaining its public spaces.