Tabatha Abu El-Haj (Drexel University Thomas R. Kline School of Law) has posted A Right of Peaceable Assembly (Columbia Law Review, Volume 128) (91 pages) on SSRN. Here is the abstract:
The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not just be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly's distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech-conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact, however, is that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly's value and its social costs.
Agreed as to the importance of giving the assembly clause meaning apart from the free speech clause — though the word "peaceably" plays a big role, both in what it protects and, by negative implication, what is not protected.
(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended."
Posted at 6:04 AM