May 10, 2023 | SCOTUS Concludes Oral Arguments for the Term
|Right to Assemble and Right to Petition||Important Cases|
|The right to peacefully assemble was declared to be a right “cognate” and “inseperable” from the freedom of speech and freedom of the press in the 1937 decision De Jonge v. Oregon. De Jonge had been arrested under a state criminal syndicalism statute because he organized a peaceful public meeting where he spoke on behalf of the Communist Party. The Supreme Court held that since the right to assemble was so closely related to the rights of free speech and the free press, it should have the same level of protection under the 14th Amendment. The government could prohibit speech that instigated crime or violence, but could not criminalize peaceful meetings that were not advocating crime or violence. De Jonge’s conviction was overturned.|
In Thomas v. Collins, decided 1945, the right to petition and assemble was again considered to be inseparable from other First Amendment rights. The case involved a Texas law which required union members to get an organizers permit prior to being allowed to solicit new members. An organizer was convicted of speaking at a rally without a permit, and he challenged the constitutionality of the statute. The Supreme Court sided with the labor organizer, holding that the law violated the First Amendment. The Court emphasized that protected free speech being expressed in an assembly or petition can take many forms, and that petitions did not necessarily have to be political in nature. A solicitation for members to join a union may very well be business and economics related, but is still equally protected and would require a compelling government interest to be able to infringe it.
The Court further clarified the protections afforded to the right to petition in 1961 when it decided Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. The case involved a lawsuit by long distance trucking companies which alleged that multiple railroads had conspired, in violation of anti-trust laws, to influence the government to pass legislation that was harmful to truckers. Of particular issue was a publicity campaign conducted by the railroad companies to influence legislation that was pro-railroad and anti-trucker. The railroads filed a counterclaim, alleging the same violations of anti-trust laws, again for a publicity campaign, that the truckers had coordinated.
The Court held that publicity campaigns designed to influence the legislature into passing laws do violate anti-trust laws. The majority reasoned that anti-trust laws were designed to stop unfair private agreements between monopolies and companies – whereas these publicity campaigns instead worked through influencing official government action. The campaigns were in effect petitioning the government, and petitioning the government for a desire change is how the democratic system is supposed to work. Multiple groups or individuals working together to petition the government was likewise protected – interpreting the Sherman Act any other way would mean that Congress had passed it intending to infringe on the First Amendment, which it had definitely not intended.
Noerr is considered a companion case to United Mine Workers v. Pennington, a labor union case decided four years later. The Court applied the same logic used in Noerr to hold that labor unions do not violate anti-trust laws when they conduct joint efforts to influence public officials. Combined, these two cases created the “Noerr-Pennington Doctrine”, a doctrine which protects the rights of groups to petition the government.
The decisions in both Noerr and Collins were cited when the Court decided
National Ass’n for Advancement of Colored People v. Button in 1963. Virginia had amended its laws to effectively criminalize the way the NAACP solicited and retained clients within the state. The NAACP sued on the grounds that this violated the First Amendment. The state argued that the NAACP’s soliciting for clients did not count as protected First Amendment speech, but was actually professional business conduct which the state could regulate.
The Court held that the NAACP’s solicitation for clients was within the protection of the First Amendment. Citing Collins, the Court reasons that the First Amendment protects many kinds of messages, particularly advocacy. In this sense, the NAACP’s lawsuits actually represented one of the only forms of petition that existed for discriminated-against minorities in the south: petitioning of the courts for relief for redress of grievances. Citing Noerr, the Court emphasized that coordinated group petitioning was protected, and that the state’s interpretation of protected speech was far too narrow. The NAACP was not a standard law firm acting between private actors – its entire purpose was pro-bono work to vindicate the constitutional rights of others. Given the appropriate First Amendment protection, the Court concluded that the solicitation was not something the state could ban without first showing a compelling state interest.
The same year as Button was decided, the Court also issued an opinion in Edwards v. South Carolina which affirmed the right to peaceably assemble and petition the government. A group of civil rights demonstrators protested outside the South Carolina statehouse, and a hostile white crowd formed in response. The police ordered the protesters to disperse and arrested them when they refused, for breaching the peace. The Court overturned this conviction as violating the First Amendment rights of the protestors to free speech, right to assemble, and right to petition. Non-violent protest at the site of the state capitol building, over grievances regarding unequal racial treatment, was determined by the majority to be an “exercise of these basic constitutional rights in their most pristine and classic form.” A similar ruling was reached in the 1965 case Cox v. Louisiana.
The government cannot limit or deny the right to assemble because it does not agree with, or dislikes, the assembly or the message they are expressing. In Coates v. City of Cincinnati, a Cincinnati city ordinance prohibiting three or more people from gathering on a sidewalk that “annoyed” others was struck down as violating the First Amendment rights to assembly. The Court held that mere public intolerance or annoyance cannot ever be enough to criminalize assembly, and that the ordinance was unconstitutional on its face. A footnote in the opinion quoted a lower court making a similar ruling:
“[A]rrests and prosecutions, as in the present instance, would have been effective as against Edmund Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe, Patrick Henry, Thomas Jefferson, George Washington and others for loitering and congregating in front of Raleigh Tavern on Duke of Gloucester Street in Williamsburg, Virginia, at any time during the summer of 1774 to the great annoyance of Governor Dunsmore and his colonial constables.”
The right petition extends to all branches of government. The 1972 case California Motor Transportation Co. v. Trucking Unlimited involved a lawsuit between groups of trucking companies. The plaintiff group claimed the other had instituted multiple state and federal actions opposing plaintiff’s applications for operating rights in bad faith: effectively abusing the legal and regulatory systems in an attempt to drive the plaintiff out of business. The defendants argued that their actions were protected by the Noerr-Pennington Doctrine, but the Court disagreed. First, the Court held that the right to petition applied to all aspects of government: in this case, this included agencies because they were the “creature of the legislature, and the arms of the executive.” Having established this, the Court re-iterated its decision in Noerr. However, the Court differentiated this particular case, because of the allegation of bad faith abuse of the process. Such conduct, if true, would actually be the defendant infringing the plaintiff’s ability to petition government. The Court held that conspiracy to infringe on a party’s ability to petition government would not be immune from anti-trust laws.
Although the right to petition guarantees that a speaker may petition the government for grievances, the First Amendment cannot make the government respond or acknowledge the speech. In the 1979 decision Smith v. State Highway Employees, Local 1315, a public employees union sued the government for refusing to allow a union to file a complaint on behalf of its members. The government insisted that grievances could only be filed by individuals, who then must submit it to their supervisors. The Court held that this did not violate the First Amendment because the government wasn’t preventing the union members from associating or expressing the complaints. Instead, the government was simply choosing one complaint procedure, and choosing not to listen to the grievance petition when submitted as a union. The majority stated that, “[T]he First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.”
|De Jonge v. Oregon (1937)Thomas v. Collins (1945)|
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc (1961)
Edwards v. South Carolina (1963)
Coates v. City of Cincinnati (1971)
California Motor Transp. Co. v. Trucking Unlimited (1972)