All Assemble: Order and Disorder in Law, Politics, and Culture

Abstract

By comparing the recent experience of the Occupy movement with the experiences of ethnic, religious, and labor assemblies in the late nineteenth century, this Article seeks to show that the history of outdoor assembly in the United States is one of continuity and discontinuity and to use that history to open up a conversation about the reasons that tolerance of the disruption associated with outdoor gatherings is necessary to sustain the central functions of an important form of political participation.

While citizens have periodically taken to the streets in inconvenient and risky ways throughout our history, our contemporary attitudes, as evidenced in law, practice, and public discourse, stand in stark contrast to the attitudes of previous generations of Americans. Contemporary Americans value individual freedom and various sorts of expression far more than previous generations, but we are exceedingly wary of the risks presented by crowds. Our fears of the disorder associated with outdoor gatherings are, unfortunately, undermining the right of peaceable assembly and the critically important form of political participation it safeguards.

The history of public assembly poses a challenge to our apparent decision to value safety above all else. In our understandable nervousness about disorder and condemnation of violence, we have lost sight of the fact that disorder and disruption arise out of the very nature of assembly – a crowd out of doors being policed by government officials. Perhaps more critically, we have lost sight of the fact that for dissenters, in particular, disruption is central to the efficacy of public protest. While unlawful and violent actions on the part of gatherers obviously must be addressed, the history recounted here suggests that it is time to revisit the political value of public assembly and to explore reasons to embrace the inconvenience and disorder associated with political crowds. A robust right of assembly requires a recalibration of the balance between First Amendment freedoms and public safety. The Article concludes with some preliminary thoughts as to how a more robust right of assembly could be adapted to modern conditions.

Keywords: First Amendment, Legal History, Right of Peaceable Assembly, Labor, Religious Groups, Evangelicals, Occupy Wall Street, Violence, Culture, Assembly, Riot, Political Participation, Democracy, Public Forum Doctrine, Riot, Unlawful Assembly