The World War I (WWI) era generated the substantive First Amendment. Subsequent jurisprudence, however, has focused on the speech right and left the right to assemble underdeveloped. This is so because courts, lawyers, and scholars view the WWI cases as speech cases. In fact, these cases implicitly tested the assembly right more than they have been read to test the speech right because they involved “membership crime” – criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article uncovers the importance of the assembly right during the substantive First Amendment’s generation. It therefore serves as a corrective to the law’s lopsided focus on the speech right, and ultimately argues for the importance of assembly in democracy-based arguments for robust First Amendment rights.
Steven R. Morrison, Membership Crime vs. The Right to Assemble, 48 J. Marshall L. Rev. 729 (2015)