Constitution Law Tuesday

Constitution Law Tuesday! As we witness demonstrations across our nation, I felt the need to brush up on the First Amendment Constitutional right to peaceably assemble and its limitations. The First Amendment to our Constitution states: “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.” This right protects, within limits, the rights of the people we see marching, protesting, and gathering in public places in protest over the last few weeks. The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The right to assemble is not, however, absolute. While government officials cannot simply prohibit a public assembly, the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Time, place, and manner restrictions by our government are allowed so long as they are “justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.” So our government may not pick and choose which groups are allowed to assemble based on the group’s mission and reason for gathering. The government must remain neutral and deal with all groups using the same standards and rules. And any government interference in the right to gather must be kept to a minimum. Over eighty years ago, in the case of De Jonge v. Oregon, 299 U.S 353 (1937), the U.S. Supreme Court unanimously ruled that the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be made a crime.” That decision applied the First Amendment right of peaceful assembly to the states through the due process clause of the Fourteenth Amendment. In another case from that time period, Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court held that orderly union picketing that informs the public of issues is protected by the constitutional freedom of speech of the press and the right of peaceable assembly and cannot be prosecuted under state loitering and picketing laws. However, the right to assemble and protest is not absolute. The wording of the First Amendment itself limits that right as it protects only the right to peaceably assemble. That means law enforcement may break up any gathering that has turned violent or raises a “clear and present danger” of violence or disorder, as our Supreme Court explained in the case of Cantwell v. Connecticut, 310 U.S. 296 (1940).Violence isn’t the only limit on the right of assembly. Our government may also limit gatherings that clearly pose immediate threats to public safety, such as when protesters block traffic in freeways or bridges, because maintaining public safety involves keeping streets open and traffic moving. As our public discourse continues to heat up, it is important to understand that our Founding Fathers drafted our Constitution to protect the people from the government selectively enforcing laws to silence free speech and protest. Our Founders also understood that the right to assemble in protest cannot be used to do violence or threaten the public safety.