Bill of Rights – Freedom of Assembly

Congress shall make no law  . . .  or the right of the people peaceably to assemble . . .

The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably.  The Fourteenth Amendment to the United States Constitution makes this prohibition applicable to state governments.

When considering the Bill of Rights, the right to assembly was somewhat controversial. Four of the original thirteen states expressly guaranteed the right of assembly in their constitutions or charters in 1789. This right, however, was considered more of an adjunct to other rights than an independent right.

Representative Theodore Sedgwick moved to strike the words “to assemble and” from what became the First Amendment. He believed the words to be “unnecessary surplusage.”

Sedgwick argued, “If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question.” Sedgwick lost, however, in part because many believed that the right of the people to assemble encompassed the right to assemble in a constitutional convention and change the structure of government, a right in fact established in the Constitution itself in Article V.

The following is taken directly (quoted) from an excellent summation of Freedom of Assembly by John Inazu and Burt Neuborne in the blog “”. You can read their summation by clicking HERE.

“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.” 

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 right of assembly gained particular prominence in tributes to the Bill of Rights as the United States entered the Second World War. Eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt, all emphasized the significance of the assembly right. At a time when civil liberties were at the forefront of public consciousness, assembly figured prominently as one of the original “Four Freedoms” (along with speech, press, and religion). When, however, President Franklin Delano Roosevelt switched to a different grouping of “four freedoms” in an effort to rally support for American entry into WWII, assembly (and press) dropped out. Neglect of assembly as a freestanding right has continued ever since. In fact, the Supreme Court has not decided a case explicitly on free assembly grounds in over thirty years. But despite its recent state of hibernation, the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called “the right to differ.””

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.