The Whole Concept of ‘Unlawful Assembly’ Is a Mess

That March day, on the other side of the bridge stood hundreds of Alabama state troopers, sheriff’s deputies, and mounted “possemen” (white locals “deputized” by Dallas County Sheriff Jim Clark). They were armed with rifles, tear gas, batons, and cattle prods. “It would be detrimental to your safety to continue this march,” Alabama State Police Major John Cloud announced. “And I’m saying this is an unlawful assembly. You are to disperse.”

The subsequent violence became known as “Bloody Sunday,” and the shock waves it sent across the country transformed the national debate about voting rights for Black Americans.

The words that echo in 2020 are “This is an unlawful assembly.” This summer, police in Oregon have been “declaring riots” almost every night. And Oregon is not even on the cutting edge: The mayor of one southern hamlet, Graham, North Carolina, recently “suspended” all protests, out of a professed fear that demonstrations against Confederate monuments would lead to violence.  Similarly, the troopers who brutalized the crowd of unarmed men, women, and children on Bloody Sunday saw themselves as enforcers of the law. But, textually, the words unlawful assembly embody a tension, even a contradiction—because the First Amendment, in its very terms, protects “the right of the people peaceably to assemble.” So “unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but, in each case, the burden has to be on the authorities to explain why this assembly, this writing, this religious exercise is an exception to the broad protection afforded to these important political rights.

Read: How Martin Luther King Jr. recruited John Lewis

By the logic of unlawful assembly, John Lewis had it coming. He and the marchers had gathered without permission. They had blocked a highway. Told to go home, they stayed. And violence followed. If you want to get technical, the marchers didn’t commit the violence—it was committed by the police and the local white toughs who hung around the fringes of the march. But the marchers had gathered in a place where the police didn’t want them. As one local white official explained to Martin Luther King Jr. in the aftermath of the march, “Everywhere you have been, there has been violence.”

Some scholars have argued recently that Americans have lost sight of “peaceable assembly” as an important constitutional right. One of them is Tabatha Abu El-Haj, a professor at the Drexel University Thomas R. Kline School of Law, whom I spoke with last week. Abu El-Haj has written extensively about the First Amendment and the right to assemble in particular, including a 2009 article called “The Neglected Right of Assembly.” Abu El-Haj explained to me that while England maintained a relatively tight leash on popular assemblies, the experience of the American Revolution convinced early Americans of the importance of “the people out of doors” as part of citizenship and political participation. Marches, open-air meetings, and protests were routinely held on public property during the 18th and 19th centuries. Not until 1914, in fact, did New York, by then a city of 2 million, even begin to require permits for these marches.