Gerald J. Whalen
Among the essential rights guaranteed by the First Amendment, “the right of the people peaceably to assemble” seems to garner little distinct discussion, although it is recognized as being inextricably bound with and “equally fundamental” as those of free speech and free press. De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937). Indeed, at least one scholar describes this right as having become “a historical footnote in American political theory and law.” See John D. Inazu, The Forgotten Freedom of Assembly, 84 Tul. L. Rev. 565, 566 (2010). Nonetheless, the right to peaceably assemble for the purpose of advancing beliefs and ideas or “to petition the Government for a redress of grievances” (U.S. Const. amend. I) constitutes an “attribute of national citizenship” (United States v. Cruikshank, 92 U.S. 542, 547 (1875)).
The importance of the right to peaceably assemble can be found in the traditional characteristics ascribed to its exercise: Often the right is invoked by those who “dissent from the majority and consensus standards endorsed by government” and who seek public, advocacy-oriented visibility (see Inazu, 84 Tul. L. Rev. at 570). The exercise itself tends to be more expressive than simple association, which can be private, and may manifest in parades, demonstrations, and other creative forms of engagement (id.; cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-62 (1958)).The historical significance of this right, early manifestations of which include eighteenth century political societies and their initially scandalous expressions of open criticism of the federal government, is the “understanding of popular sovereignty and representation in which the role of the citizen was not limited to periodic voting, but instead entailed active and constant engagement in political life” (Robert M. Chesney, Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic, 82 NC L. Rev. 1525, 1537-40 (2004); see Inazu, 84 Tul. L. Rev. at 577-81).
Today, assembly is not only a conduit for the expression of political dissent against the government, but an important tool for recognizing and amplifying otherwise marginalized voices in our society. More and more often our nation’s citizens meet in cyberspace to opine and discuss and decry and, yes, ‘like’ positions on issues, not only of politics, but of our societal values as well. This digitalization of the town square bridges physical distances and introduces people, thoughts, and experiences to which we would not otherwise be exposed, and can facilitate understanding and empathy due to the context this communication provides. The Internet permits private interaction, certainly, but it also permits people, regardless of physical distance or other traditional impairments to collective action, to unite to discuss and advocate their shared ideals to the government or the public in general.
Moreover, although the Internet may not be a public forum in and of itself (see generally United States v. American Library Assn, 539 U.S. 194, 205-07 (2003) (plurality opinion); Elizabeth Henslee, A Funny Thing Happened on the Way to the Public Forum, 43 Cap. U. L. Rev. 777, 826-30 (2015)), social media is often the catalyst for the traditional, real-world exercise of the right of assembly in its most “pristine and classic form”: a peaceable gathering to protest grievances inflicted by government (Edwards v. South Carolina, 372 U.S. 229, 235 (1963); Inazu, 84 Tul. L. Rev. at 566). In other words, it has become an essential conduit to the exercise of this right. Far from an idle information stream, activists—seasoned or newly fervent alike—utilize social media to raise awareness, to organize, and to mobilize in person locally, nationally, and globally. What begins as an online thought becomes hundreds of thousands assembling to petition shared grievances against the government—such as the Women’s March on Washington and its simultaneous satellite marches throughout the nation. This grass roots method of political and social engagement is far from new. We have simply replaced a bullhorn with a hashtag and a physical flyer with a digital post.
This is not to say that online assembly does not have its dangers. The practical reality of the Internet is that it can divide, rather than unite, when users interact in only self-created echo chambers that parrot their existent views back to them. The constant flow of new information, colored by a poster’s own perception or outright disinformation, can undermine attempts at reasoned deliberation and allow debate to devolve into meaningless adherence to a party line. This potential for people to divide into factions, however, is neither new nor a result of technology. The Founders in fact anticipated both this result and the problems arising from this division. “A zeal for different opinions … ; an attachment to different leaders … ; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.” James Madison, Federalist No. 10. The fix, of course, is not to inhibit the dissenting or differing viewpoints that create factions within our society, inasmuch as this erosion of liberty would “be worse than the disease.” Id. Instead, an essential element of our republican government is the need to ensure that the voice of the majority does not silence the rights of the minority. James Madison, Federalist No. 51. Through the exercise of the right to assembly, now supported by our increased ability to connect and understand, the voices of the marginalized and disenfranchised are amplified, and our nation is stronger for it.
Gerald J. Whalen