Unlawful Assembly as Social Control
52 Pages Posted: 30 Mar 2016 Last revised: 24 Jan 2017
Date Written: March 29, 2016
Recent public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary approaches to unlawful assembly cede too much discretion to law enforcement. Too many unlawful assembly provisions neglect important elements of earlier statutory formulations. They also ignore constitutional principles meant to constrain the scope and extent of discretionary enforcement of social control by public authorities. In doing so, they fall short of the aspirations of the First Amendment — stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start by reclaiming a more measured approach to unlawful assembly that recognizes both constitutional and common sense limitations.
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