What are the limits to the right to assemble?

0:01The textual word peaceably. It's the only right in the First Amendment that has that modifier. We're stuck with trying to figure out what peaceable means. Now, the challenge or the danger is that we can often subjectivize that, what you might consider non peaceable could be different than what I might think of it. We have to have some effort to reach a standard of what we mean. The Supreme Court has generally said when there's evidence of imminent incitement to law breaking, that's the standard in both speech and assembly. When someone says, in this moment, we are going to break the law, and that doesn't have to be a violent law breaking. It could be, let's commit tax evasion now. That would be imminent incitement to law breaking. That's the standard that crosses the line of peaceability but the important corollary here is, especially with assembly,

0:49I think maybe even different than speech because when you think about the physical gathering or the protest situation where emotions are running high, and it's often volatile and people aren't sure what's happening next, that we have to in order to honor the right of assembly, allow some breathing space, for people to try and stay peaceable and that line between peaceable and non peaceable can shift very quickly, and law enforcement has to be able to come in when an assembly turns non peaceable.

1:17Somewhat, maybe understandably, but in practice, we see a lot of law enforcement shutting down assemblies that are still peaceable in nature and that's really at the test of our civil liberties when we can say, no, we need to let this discomfort, this instability last a little longer because it's still peaceable, even though it's not what we might want. It's interesting because in practice today, a lot of those in the street protests are more governed by free speech law.

1:42I think that's a combination of historical path dependence and some things the Supreme Court probably got wrong but when you think about the fact that we have this right of assembly in the First Amendment, and that what people are doing is assembling, you would think it'd be at least important to consider what that right means and the limits on it that should run through that protection, and not necessarily just speech.

2:04I'll say one important reason for that is that an assembly is doing lots of non speech things. When we think about speech, we think about words, maybe a poster or something like that, some expression, but an assembly is manifesting its presence in all ways. It could be just the power of the numbers of people gathered. It could be that they're gathering in silence.

2:26It could be that they all stand up or sit down at the same time and all of those non speech actions are important to what the assembly conveys, even where they meet. Think about labor protest outside of the company v 5 miles away. The location and the time is really going to matter for an assembly.