Read more: The power of in-person protesting
What went wrong with the protections for America’s public expressions and private groups, and why does it matter? Put simply, American law and practice have lost sight of the importance of protecting difference and dissent. Local officials too frequently end protests prematurely or move them to distant locations where they will be less effective. Lawmakers overregulate nonviolent groups that resist majoritarian norms. And many Americans cede too easily to the demands of conformity rather than pursuing and protecting alternative visions of society. As a result, many modern American protest movements lack the sustained engagement that unfolds elsewhere in the world.
Part of the problem is judicial inattention: The Supreme Court has not addressed the scope or meaning of the First Amendment’s “right of the people peaceably to assemble” since 1983. Instead, protests and demonstrations are now governed by free-speech doctrine, which ignores the right of assembly and neglects the importance of collective expression. Meanwhile, a core part of the right to assemble—the right to create private groups as part of civil society—falls mostly under the judicially recognized right of association. This right was first recognized by the Supreme Court only in 1958, with little analysis to support it. By cordoning off the right to form and maintain groups to a new and undertheorized right, the Supreme Court weakened both the right to assemble itself, and the intellectual discourse that gives it life.
The Founders had a different approach, as I document in my 2012 book, Liberty’s Refuge: The Forgotten Freedom of Assembly. In one of the lesser-known exchanges in the First Congress debating the Bill of Rights, Thomas Hartley of Pennsylvania sparred with Elbridge Gerry of Massachusetts about whether the First Amendment should include a right of assembly. The draft text then before the House of Representatives provided that “the people shall not be restrained from peaceably assembling and consulting for their common good.” Hartley endorsed that wording, suggesting that assembly should extend to “every thing that was not incompatible with the general good.” Gerry responded that if Hartley meant to say that the people merely “had a right to consult for the common good” but “could not consult unless they met for that purpose,” he was in fact “contend[ing] for nothing.” The First Congress soon dropped the common-good limitation.
As Gerry recognized, and the First Congress eventually acknowledged, a core purpose of the right of assembly is to allow people to resist majoritarian understandings of the common good. This basic recognition is an essential part of living in a diverse society where different beliefs lead citizens to different thoughts on what is best for their country, its people, and its communities. Despite widespread political invocations today of “the common good” by politicians and pundits, not everyone agrees on the purpose of the United States, the definition of a human being, or the nature of human flourishing. These are not small questions. Americans can identify certain political goods, such as interstate highways and national defense. But as the theologian Luke Bretherton has noted, attempting to name the common good of a nation as large and diverse as America “denies the plurality and contestability of moral visions in complex societies and the conflicts that arise in pursuit of divergent moral goods, all of which must be negotiated through politics.”