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American Government: The Right to Assemble


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About this Lesson

  • Type: Video Tutorial
  • Length: 12:28
  • Media: Video/mp4
  • Use: Watch Online & Download
  • Access Period: Unrestricted
  • Download: MP4 (iPod compatible)
  • Size: 133 MB
  • Posted: 07/01/2009

This lesson was selected from a broader, comprehensive course, American Government. This course and others are available from Thinkwell, Inc. The full course can be found at The full course covers constitutional principles, civil liberties, civil rights, people and politics, choosing representatives, political institutions, public policy, key Supreme Court cases, changes in democracy, and more. The course features three renowned professors: Gerald Rosenberg, an Associate Professor of Political Science at the University of Chicago, Mark Rom, an Associate Professor of Government and Public Policy at Georgetown University, and Matthew Dickinson, an Associate Professor of Political Science at Middlebury College.

Gerald Rosenberg directs the American Politics Workshop and lectures at the law school at the University of Chicago. He holds a Masters Degree in Politics and Philosophy from Christ Church, Oxford University, has a law degree from the University of Michigan, and has a Ph.D. from Yale. As a specialist on the judiciary, Prof. Rosenberg is the author of “The Hollow Hope: Can Courts Bring About Social Change?” and spent the 2000-2001 academic year teaching at Northwestern University Law School as Jack N. Pritzker Distinguished Visiting Professor of Law. He has been awarded a Fulbright Scholarship and spent the 2002-2003 academic year teaching US law at Xiamen University in China. He has also been awarded the Llewellyn John & Harriet Manchester Quantrell Award for Excellence in Undergraduate Teaching at the University of Chicago.

A three-time winner of his school's Outstanding Faculty Member Award, Mark Rom received his Ph.D. in political science from the University of Wisconsin and worked for four years as a senior social science analyst for the General Accounting Office. Prof. Rom is the author of “Fatal Extraction: The Story Behind the Florida Dentist Accused of Infecting His Patients with HIV”, “Poisoning Public Health”, “Public Spirit in the Thrift Tragedy”, and coauthor of “Welfare Magnets: A New Case for a National Standard”.

Matthew Dickinson received his Ph.D. from Harvard. A specialist on the presidency, he is the author of “Bitter Harvest: FDR, Presidential Power and the Growth of the Presidential Branch”. Prof. Dickinson has published numerous articles and has provided television commentary on the presidency, presidential decision-making, and presidential advisers. His current research examines the growth of presidential staff in the post-World War II era.

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Let's say your college or university adopts a new rule that really annoys you, and what can you do about it. My guess is if you are like me most of the time you'll just grin and bear it. It's a matter of principle. It's really upsetting, and you can't continue you might actually leave or transfer - it doesn't happen very often. More often you might try and change it. Maybe you'll organize a protest demonstration. I even have a slogan for you. Hey, Hey, ho, ho, dumb old rules have got to go - hey, hey - can have a lot of fun with that. And the chances are if you try that, the administration may not be very happy with you. And indeed maybe they will try and punish you or harass you - possibly even expel you - let's hope not.
Now this was a question the framer's of the Constitution, the founder's of this country faced. Same sort of problem. What would people do its this government they were created - creating acted badly. What options would they have - transferring it's not really an option here. I guess you could go to Canada or Mexico or move west - but when there are other things you could do. Well, the Constitution of course has the primary one, and that you throw the bums out in the next election. Elections are a real limit on government. But let's say you think the damage from what the government wants to do is going to happen quickly and throwing the bums out two or four years later isn't enough. Let's say you are a minority, and don't think the election will make a difference. Well, what can you do? Well, the framer's wanted to make sure that you could have the right to protest, and they wrote into the First Amendment to the Constitution.
Now they did it in eighteenth century language. So, I want to read it to you. What the First Amendment says is that Congress shall make no law or bridging the right of the people peaceably to assemble and to petition the government for redress of grievances. In other words, you can show up and organize a protest demonstration. By its language, the First Amendment limited the Congress or through a doctrine known as Incorporation, the court in the twentieth century read the First Amendment to limit the states as well. So, not only can you criticize or have a demonstration to criticize the federal government you can criticize, your state government, your state university, and the like.
Now historically, been lots of protests in this country. We celebrate the Boston Tea Party - a bunch of vandalism, right. These guys break into a boat, they take the contents - the tea, and they throw it over board into the Boston Harbor.
More recently, protests in Seattle, Washington over the World Trade Organization, and just hundreds and thousands or protests in between from abolition to anti-war to a whole variety of activities. We even have great writing in favor of protest. Henry David Thoreau's famous essay on Civil Disobedience in which he made the argument for why it was justifiable to break the laws to make a political argument; although importantly, he thought part of it was the willingness to serve the sentence that would be imposed for breaking the law.
Now what can government do when there's a demonstration? Well, the First Amendment means government can't prevent it. On the other hand, government can regulate it. And it can regulate it on a number of grounds. Excessive noise is one. What about pollution? You throw all your signs on the ground that can be regulated. Concerns about traffic control - really don't want you blocking roadways at rush hour. Crowd controls - well, you want to keep crowds peaceable. You don't want violence. So governments can require you, if you want to have a demonstrate to apply for a permit so the government can be ready to set up its police protection, and the like. And there are also restrictions that are known as time, place, and manner restrictions. And again, these are the notion of allowing a demonstration to occur; but in a way that's least disruptive to everybody else. For example, a government might ban a noisy, nighttime demonstration in a residential neighborhood - a lot of sense - wake people up. One thing the government cannot do under the First Amendment; however, is to ban a demonstration because it doesn't like the views being expressed. Government can't make decisions based on content. The fancy legal term for this is viewpoint neutrality. Example, the government can't ban a demonstration criticizing the U.S. involvement in the Gulf War but allow one supporting it.
A state university can't ban a right to life protest on the abortion issue, but allow a pro-choice one. Now this may seem simple enough, but what if a demonstration provokes violence? What happens then? The Supreme Court and the courts have dealt with some issues. A famous case from New Hampshire called Chirplinksi - occurred in 1942 in the small town of Rochester, New Hampshire. There, a Jehovah's witness was on the street trying to spread his religion, and he was arrested by the police, and he had some choice things to say to the police officer as the crowd gathered - called the officer a "damned fascist." And he said other things about the government of Rochester, New Hampshire that are not the usual kinds of language expressed there. He was convicted of using words that were likely to incite hatred, and lead to violence, and the unanimous Supreme Court upheld that conviction saying that there were some words called fighting words that could not be said.
Now think about that for a second. There's a danger there to those who want to demonstrate. And the danger is what if somebody in the crowd gets unruly - starts punching people - can that be used to prevent a demonstration? The term that's used here is called "Heckler's Veto." And attempts were made to use this in the South to stop Civil Rights demonstrations - to stop demonstrations in favor of ending segregation. Whites in the South would get upset when Black speakers were there, and they'd start violent actions, and then the police would come in and stop the demonstration. Well, the Supreme Court has said no to that, and won't allow an unruly crowd to shut down a demonstration. And indeed, over time, this notion of fighting words has weakened considerably as we have changed what's acceptable language.
Example here is a case from Indiana called Hesby, Indiana, during the Vietnam War - the police were ending a demonstration, and one demonstrator turned to one of the policemen into the crowd, and said we'll take the streets later; however, he used an expletive word to describe the streets. Now he was arrested for that - convicted. The Supreme Court reversed that conviction saying there was no likelihood that that word would lead to any violence.
Also, a case in Ohio called Brandenburg, which involved the Ku Klux Klan. Twelve hooded members of the Klan gathered - burned a cross. They gathered, however in a cornfield, and the only people witnessing this protest were a group of newsmen they had invited to film it. They were convicted of violating an Ohio law, but the Supreme Court overturned that conviction saying there was absolutely no likelihood that this would lead to violence - there was nobody there.
A more recent example comes from Skokie, Illinois. Skokie, Illinois is a suburb of Chicago, and many of the people who live in Skokie are Jewish and a large number of them survived the Second World War - survived the Holocaust - the Nazi's murder of six million Jews. American Nazi's wanted to march through Skokie, and they wanted to march in full uniform flying Nazi's flags, and the like. The City of Skokie adopted three ordinances - three laws to try and prevent them and the Nazi's sued. The Nazi's were defended by a group called the American Civil Liberties Union - known as the ACLU. The ACLU is a group that's committed, not to the views of the Nazi's, but to making sure everyone has the right to protest, to march, to speak, regardless of their opinions. Now interestingly, the ACLU lost one-third of its national membership for this action. The courts; however, said that the Nazi's had the right under the First Amendment to march. That Skokie could not ban them. Having won the case three days before the Nazi's canceled their march, and decided instead to march in the City of Chicago. The City of Chicago tried to stop them, and finally lost again, and finally the march occurred, and it was mostly a dud.
Now, along with the right to protest, the Supreme Court has added certain rights of association. And let me explain this. Go back to your demonstration against the university. Let's say that the administration finds out what you are up to. The administration might say we're going to stop this demonstration, and this movement dead and they come to you and they demand your membership list - the list of everyone in your organization. What's their thinking? Well, if they get that list, they can go to each person, threaten them, and harass them, warn them not to march, and the like. This can effectively stop political protesting and scare people. I'd be pretty scared being a university official came to me and threatened me about an action - probably keep quiet. Well, this has been tried a lot in this country, and indeed during the Civil Rights Movement the State of Alabama went after a leading civil rights organization and asked for its membership list. In the South in the 1950s and 1960s if a person was publicly identified as a member of a civil rights group not only was their job in danger, but their life was as well. So, the National Association for the Advancement of Colored Persons - the NAACP, in this case, the organization that was involved refused to give over the list. This finally went up to The Supreme Court, and what The Supreme Court said was that freedom of association was a vital part of First Amendment protection. So, if that university administrator asks you for that membership list tell them that you don't have to give it to them and the Constitution protects you.
What I hope you'll remember from this is how important the right to protest is to a democracy. How important it is to preserve our freedoms, and our liberty, and to try and make sure that government officials, university leaders, and others don't make real mistakes. It's an activity and a right that's deeply ingrained in American history but it's one we need to make sure to preserve.
Civil Liberties and Civil Rights
First Amendment Rights
The Right to Assemble Page [2 of 2]

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