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Right to Assemble

Earlier this week, I visited "Occupy Harrisonburg." This version of the occupy movement is quite different from the ones usually on the news or "Occupy New Orleans" that I visited earlier (see post here). There are no tents and the group has not been occupying space around-the-clock. The group instead gathers each night for an hour in the gazebo on the courthouse square, which is public land in the middle of downtown. Most nights, a few individuals simply gather to hang out and discuss important political, economic, and social issues. On Tuesday nights, the group has its weekly general assembly where they use the consensus model--and the occupy hand gestures--to talk about the occupy movement, important issues, and decide on future actions. I visited the group on Monday and Tuesday of this week (photos below are from Tuesday's general assembly). At the heart of our democratic freedoms is the idea that the people have the right to peaceably assemble (along with having public space for such assembly as I argued in a post here).

The reactions to various occupy encampments across the nation, however, raise critical questions about the limitations placed on our First Amendment rights. After New York City Mayor Michael Bloomberg evicted the occupiers from the park that served as the birthplace of the movement, he declared:
The First Amendment gives every New Yorker the right to speak out – but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others – nor does it permit anyone in our society to live outside the law. There is no ambiguity in the law here – the First Amendment protects speech - it does not protect the use of tents and sleeping bags to take over a public space.
Perhaps Bloomberg should read the whole First Amendment because it is about much more than simply free speech. It also has that part about not abridging "the right of the people peaceably to assemble." That is the section that is relevant to the occupy movement meeting in parks or in gazebos on the court square. Although the occupy movement is clearly exercising free speech rights, the problem with Bloomberg using what he thinks is his "own army" to evict the occupiers is really a matter of assembly rights. Regardless of what one thinks about the message of the occupy movement, their First Amendment rights should be protected--or else none of us can really be confident we have such rights. In his statement, Bloomberg added that protesters " are welcome there to exercise their First Amendment rights" but "going forward, must follow all park rules." Yet, when did a park rule come to trump the First Amendment? If the First Amendment merely protects free speech, then Bloomberg and other mayors are within their rights to evict the occupiers (as is being threatened at this moment in New Orleans). However, if the First Amendment is about more than free speech--and it is--then Bloomberg and other mayors are violating the rights of nonviolent individuals to assemble.

Kevin DeLuca, a communication professor at the University of Utah, recently penned a column in which he explained that the lack of respect for the right to assemble shows that "[t]he First Amendment is gravely ill." He added:
The Occupy protests reveal the architecture of oppression. First, the loss of public spaces leaves few places to protest. When people do gather in public places, local laws are used to violate the people's First Amendment right to assemble. ... Of course, arbitrary public park closing times are not considered critical to America's democracy and yet they are deployed to silence people in city after city, including Oakland, Seattle, Phoenix and Atlanta. ... Americans do not need to ask permission to assemble. The First Amendment is a right, not a privilege. Even in the Internet Age, democracy and freedom depend on the right of the people to assemble and speak. The Arab Spring confirmed this truth and now the American Autumn of anti-greed protests reminds us. From Cairo's Tahrir Square to Chicago's Grant Park, places for the people to assemble and speak are at the heart of any possible democracy. The physical and legal architecture of oppression must be dismantled in light of the right to assemble in places and protest.
He is absolutely correct. While the occupy movement originally started to bring attention to the problem of income inequality in our nation, it is also serving to demonstrate the problem of government officials trying to limit our First Amendment freedoms. As I sat in the gazebo on Tuesday night during the "Occupy Harrisonburg" general assembly, it hit me that this is democracy--people peaceably gathering in the heart of the city to talk about issues and how to improve the community. There on the court square in the middle of downtown Harrisonburg, people are exercising their First Amendment rights. Even if they do not say anything, just by showing up they are participating in democracy. As Supreme Court Justice Owen Roberts wrote in a 1938 opinion:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.
That is how a simple gazebo can become a sanctuary for democracy.


  1. My understanding of the First Amendment is that the Founders were referring to the banning by the British of assembly of certain groups which usually occurred on private property--homes and churches. It doesn't give people the right to co-opt someone else's property, even public property, for whatever they feel like. Zuccotti park is a privately-owned public space, not a public square, so I'm not sure Justice Owens' words are applicable (and neither did the NY Supreme Court, right?). If an OWS group occupied your house and kicked you out, how would you feel if they claimed the First Amendment gave them that right? You're arguing that their right to assemble trumps property rights.

    Every protest the OWS people do, they chant "This is what democracy looks like." But it's also important to note that America wasn't founded as a democracy-- the Founders feared the mob, and a democracy requires a completely literate population, something that still may not apply to America today.

  2. Actually, the founders were also concerned about public assembly. In fact, public preachers were among those targeted by the British. And while it is true that the founders wanted a republic not a democracy, we have made that shift long ago (and rightfully so).

    You are missing the point on the right to assemble. Zuccotti is privately owned but is a public park that is supposed to be open to the public 24 hours a day. Thus your flawed house analogy is completely wrong--my house is a privately-owned private space not a privately-owned public space. But as DeLuca argued in the column I mentioned, part of the problem is that government officials have constructed rules to restrict usage of public spaces. That is why the occupiers went to Zuccotti--because their First Amendment rights elsewhere were already hampered. And your argument ignores the fact that in the other cities the occupiers have been evicted from publicly-owned public spaces. The attempt to shut down public spaces is a serious problem that should concern us if we care about our First Amendment rights.

  3. Esther Poveda9:39 AM

    Great posting on Occupy Harrisonbur, Brian. It was a pleasure to meet you last Friday.


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