Brandenburg for Groups

Abstract

Contemporary emerging scholarship on the First Amendment right of assembly is based primarily on either normative arguments arising from post-World War Two cases or constitutional originalism that looks to the Framers’ intent. This scholarship continues to treat the advent of substantive First Amendment rights in the World War One era as isolated to the speech right. That is an incomplete picture because the formative First Amendment cases were assembly cases just as much as they were speech cases. This Article fills that historical gap and, from it, generates a doctrinal argument in favor of the assembly right.

Historically, it shows that the seminal WWI cases were part of a milieu that entailed the socio-political control primarily of groups, not individuals’ speech. The mechanism was membership crime — criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article recovers assembly as a core First Amendment right, not secondary to speech. Doctrinally, the Article shows that at the advent of the substantive First Amendment it was assembly, rather than speech, that was often the primary right at issue. Indeed, even Brandenburg v. Ohio was an assembly case before it was a speech case. The Article therefore presents what it calls the “Brandenburg for groups” test, which would protect groups — even some criminal conspiracies — if they pose no imminent likelihood of substantive crime. This test responds to emerging scholarship on the assembly right, most notably the debate between John D. Inazu and Ashutosh Bhagwat on the utility of Brandenburg v. Ohio to protect that right. It traces a constitutionally and normatively appropriate line between protected and unprotected assembly that is currently lacking but is necessary to protect the democratic function of groups while continuing to ensure public safety.

Keywords: First Amendment, conspiracy, World War I, syndicalism, assembly, speech, Abrams, Schenck, Frohwerk, Palmer, Red Scare