Liberty's Refuge or the Refuge of Scoundrels?: The Limits of the Right of Assembly
33 Pages Posted: 19 Apr 2012 Last revised: 27 Apr 2012
Date Written: April 19, 2012
This essay was written for a symposium celebrating the publication of Professor John Inazu’s book, Liberty’s Refuge The Forgotten Freedom of Assembly, held at the Washington University School of Law on March 2, 2012. Liberty’s Refuge presents a fascinating and eye-opening examination of the history of the Assembly Clause of the First Amendment, and argues in favor of the continuing significance of the assembly right. In this essay, I primarily explore an issue that Professor Inazu only touches upon lightly in Liberty’s Refuge, but which I think is likely to play a central role in future debates: the limits of the Freedom of Assembly. In particular, I ask at what point a private group becomes sufficiently threatening to the social order that it falls outside the right of assembly (and the related First Amendment right of Freedom of Association). I discuss three different types of potentially threatening assemblies: violent assemblies, which engage in or plot explicit violence; subversive assemblies, which though they do not themselves act violently, inculcate values in their members or others which might result in violence; and non-conformist assemblies which threaten the social order in ways other than outright violence. I explain how each of these types of assemblies of citizens poses challenges to the general theory of Freedom of Assembly (and indeed, to First Amendment theory generally), because such groups can simultaneously make important contributions to political dialogue and self-governance, but also threaten great social harm, including at their limits undermining the broader social cohesion which is the necessary framework within which a system of popular governance must operate. I close with some preliminary thoughts on how these competing values might be reconciled, consistent with the underlying principles of the First Amendment.
Keywords: Freedom of Assembly, First Amendment, Freedom of Association, Subversion, Terrorism
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