There is No Constitutional Right to Occupy

by P.A. Madison on October 14th, 2011

“[A]ssembly to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” —William Rawle

I wish to briefly address the assertion the folks occupying Wall Street – and elsewhere – are merely exercising their First Amendment right to peaceful assembly. The constitutional provision to peaceably assemble extends no further than to peacefully assemble for a lawful purpose such as circulating a petition to present to government. It is not a requirement for government to provide a public soapbox in order for groups to publicly advocate some policy or protest some action through public disturbance, or disruption of daily life of the public.

Books are filled with court holdings since the founding that says the right to assemble gives no group of people a right to “commit violence upon persons or property,” or “resist execution of the laws,” or “to disturb public order.”

If laws for restricting camping, the hours for which public property may be occupied, or even how many persons may occupy a given space, have always been a legitimate municipal exercise, what makes anyone think either State or Federal constitutions exempts persons from such laws?

Tucker said of the the federal right to assemble was “to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.” The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”

In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.

There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.

From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.

The right to assemble and petition found under American constitutions is grounded in the Declaration of Rights of 1688 under William III and Mary that read: “That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegal.” The act of James of putting on trial seven bishops for libel for circulating a petition of grievances against one of his declarations was highly controversial and something the colonies wanted to prevent any re-occurrence.

The Declaration of Colonial Rights of 1775 complained:

And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the crown for redress, have been repeatedly treated with contempt by his majesty’s ministers of state.

Justice Story said assembly was unnecessary to be expressly provided for because of our republican form of government, and he was right since legislative or political redress in America comes from the ballot. It is worth noting that in early England Parliament was as much a court as it was a legislative body while in America the legislatures had no judicial authority. Thus, petitions to either Congress or a State legislature must be related to legislation and not grievances cognizable in court.

I will finish by saying any public protest or large gatherings are only permissible as far as local municipal law permits. As William Rawle put it, “assembly [is] to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” An ordinance that denies a gathering of people from disrupting traffic, a funeral, business or from creating a public nuisance in order to draw attention to some message does not deny any constitutional freedom.

Finally, no amount of court opinion has been able to erase the First Amendment’s beginning words; “Congress shall make no law …”

Related: Orignal Meaning of Freedom of Speech

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12 Responses | Leave a Comment
  1. On behalf of Rakesh B Pherwani of Spring, Texas:

    This is an interesting debate that I too am surprised does not get more discussion in popular media.

    Given the legal framework previously outlined, I imagine the “occupy movement” would be attempting to lobby to change the laws concerning use of public property.

    At this point in time, however (late 2012) – it is commonly agreed upon that the movement has run its course for the most part.

  2. Able Freeman says:

    What do you all (folks thinking 1A assembly is not what OWS is doing) think the founders of the republic would be doing in response to the current constitution ignoring 3 branches of gov? Please do tell!

  3. Ryan Hirsch says:

    Yes, but what is to stop Occupiers from taking their cases to the supreme court, or even just city courts and proclaiming that the physical presence was necessary in order to petition the government. Can anyone admit that they wouldn’t have cared as much had people NOT been setting up tents in lower Manhattan, Boston, and cities across the world? I argue that the camping WAS essential to getting the message out. If money is now equal to free speech, how can the poor be heard over the rich? Camping in a city park and maintaining a 24 hour presence was essential to get media coverage. That is how the occupiers were able to counter the narrative, by giving access to information to people that showed up. By being accessible to the public. Had those parks not existed, the networks of the occupiers would not have been built. None of these people would have gotten together, and none of this would have taken off as well as it did. I never camped, and really probably would have only been able to do it occasionally on the weekends, but I think that camping was an excellent strategy to gain national attention. And I feel that the more sophisticated and controlled occupy becomes, the more the media will stop paying attention to it. So that is why, (while I think it is childish) glitter bombing political candidates is a good tactic for the occupy movement. Why? Because the media thinks the rest of the country are a bunch of fourth graders who cannot understand complex problems in our society, so a confetti party all over someone’s face is going to be the only thing they will cover. Then other movements have a chance to embrace the public as more people are talking about that “awful thing Occupiers did.” But really, it is the mainstream media that makes tactics like that, I hate to say it… necessary.

  4. You bring up a very interesting and compelling point, one that I’m surprised isn’t brought up more often, especially by those in government who have to put up with the Occupy movement on a daily basis

  5. rafter says:

    Parks are for recreation, not for public camping or political protests that deprive others of using the park. Schools are for educational purposes, not for camping or protesting. There should be no right for anyone to cause cities or schools to sustain costs to support an exercise of claimed rights.

  6. spktruth says:

    The occupy movement has every right under the Constitution to hold a Peoples General Assembly, in ANY public park in this country. We are the public, we pay taxes to maintain our parks. If WE the people want to hold a peaceful assembly to discuss issues related to our lives, and our government, that IS our right under the US Consitution. WE don’t need a permit, the first amendment gives us the right….the only approval we need.

    • Ron Welch says:

      Since spktruth is from Delaware: State of Delaware v. Elliott 548 A.2d 28 (1988):

      The right of petition and assembly, as provided by the Delaware Constitution, does not mean that those who elect to enjoy this right also have the privilege to be the sole decision makers as to the way to exercise their rights under Art. I, Sec. 16. Piekarski v. Smith, Del.Supr., 153 A.2d 587, 592 (1959). The right of assembly is not an unlimited right, but a right subject to certain qualifications as imposed by the state’s police power. Taylor v. Municipal Court for the City of Wilmington, Del.Super., 247 A.2d 914 (1968). While the First Amendment of the United States Constitution guarantees the right of free speech, this does not mean that the state does not have the authority to regulate conduct which adversely affects the public interest, and indirectly affects the right of free speech. State of Delaware v. Ayers, Del.Supr., 260 A.2d 162, 168 (1969). When the state, in the public interest, properly regulates certain types of conduct, the right of free speech does not prevent the regulation of such conduct. Id. “The fact that free speech is inseparably mixed up with the regulated conduct, does not constitute a constitutional interdict against the regulation.” Id. Furthermore, “a prohibition against picketing and mass demonstration does not abridge free speech when the “activity bears no necessary relationship to the freedom to … distribute information or opinion.” Id. at 169.

    • bgwillia says:

      In case spktruth doesn’t believe State of Delaware v. Elliott applies to NYC, the Supreme Court has held on more than one occasion that “[t]he rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.” Cox v. Louisiana, 379 U.S. 536 (1965)

  7. Trent says:

    The word “assemble” is a political word for when people come together for political purposes such as make public law, e.g., “In Congress Assembled.” For first amendment purpose, assembly is for exercising the political right of petition for redress. Business meetings or picnics in a park are not political assemblies; they are simply public or private gatherings because they have no constitutionally recognized political purpose.

    • Gail Howe says:

      That is correct – the first amendment only recognizes assembly for petitioning Congress and no other kinds of assembly. No early court or framer ever suggested assembly had broad meaning when paired with the right to petition.

  8. Bambi says:

    I agree public protesting is not the same as petitioning government for redress.

  9. JimAZtec says:

    Yes sir, insurrections were always met with the calling out of the militia to put them down. Laws required stripes, years of hard labor and even expulsion from the state for participating.

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