The neglected right of Assembly

UCLA Law Review

Volumn 56, Issue 3, 2009, Pages 543-590

  El Haj, Tabatha Abu ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 64949203974     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (357)

1. See Robert D. Putnam, Op-Ed., The Rebirth of American Civic Life, BOSTON GLOBE, Mar. 2, 2008, at 9D ("Primaries and caucuses coast to coast in the last two months have evinced the sharpest increase in civic engagement among American youth in at least a half-century, portending a remarkable revitalization of American democracy.");
2. see also Marc Fisher, Change Is in the Air, At the Polls, WASH. POST, Feb. 14, 2008, at Bl (noting that "Obama drew hundreds of thousands of first-time primary voters to the polls [in Virginia and Maryland]");
3. John Harwood, For Democrats, a Pivotal Night, but in Which Direction?, N.Y. TIMES, Mar. 4, 2008, at A18 ("One remarkable feature of Mr. Obama's Iowa and South Carolina victories was that voters younger than 30 turned out as heavily as those 65 and older.");
4. Susan Page, Enthusiasm Scale TIPS in Favor of Democratic Party Voter Turnout, Morale Portend Troubles for GOP, USA TODAY, Feb. 14, 2008, at 4A (noting that voter turnout in the presidential primaries for both political parties has broken records this year).
5. Coal. to Protest the Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 2d 61, 65 (D. Mass.), aff'd sub nom. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
6. Coal. to Protest, 327 F. Supp. 2d at 66-67.
7. Id. at 74.
8. Bl(a)ck Tea Soc'y, 378 F.3d at 10.
9. Adam Nagourney & Jeff Zeleny, Obama Takes Aim at Bush and McCain With a Forceful Call to Change America, N.Y. TIMES, Aug. 29, 2008, at Al (noting that Obama was only "the third nominee of a major party in the nation's history to leave the site of his convention to give his acceptance speech" and that this was meant "to permit thousands of his supporters from across the country to hear him speak").
10. See CHI., ILL., THE MUNICIPAL CODE OF CHICAGO (1881);
11. DENVER, COLO., THE CHARTER AND ORDINANCES OF THE CITY OF DENVER (1881);
12. DETROIT, MICH., THE REVISED ORDINANCES OF THE CITY OF DETROIT (1884);
13. ST. PAUL, MINN., THEM UNICIPALCODE OF SAINTPAUL(1884);
14. S.F., CAL., GENERAL ORDERS OF THE BOARD OF SUPERVISORS PROVIDING REGULATIONS FOR THE GOVERNMENT OF THE CITY AND COUNTY OF SAN FRANCISCO (1884).
15. See generally Tabatha Abu El-Haj, Changing the People: Transformations in American Democracy (1880-1930) (Sept. 2008) (unpublished Ph.D. dissertation, New York University) (available from ProQuest).
16. N.Y., N.Y., NEW CODE OF ORDINANCES OF THE CITY OF NEW YORK, ch. 24, Traffic Regulations, § 38 (1922). The new ordinance prohibited any "procession, parade, or race" that had not obtained a written permit from the police commissioner and required that the application for a permit "be made in writing ... not less than 36 hours previous to the forming or marching of such procession, parade or race." Id.
17. The ordinance laid out rules to guide the police commissioner and provided exemptions for certain groups, including for "processions or parades which have marched annually upon the streets for more than 10 years, previous to July 7, 1914." Id.
18. See N.Y., N.Y., THE CODE OF ORDINANCES OF NEW YORK(1931).
19. The U.S. Supreme Court has tended to consider the right of assembly as simply a facet of the right of free expression. See 5 RONALD D. ROTUNDA & JOHN E. NOWAK, 4 TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 20.54(g), at 641 (4th ed. 2008) ("When the government limits the rights of persons to communicate in public, it is most common for courts to examine the governmental action in terms of the freedom of speech rather than the freedom of assembly.");
20. RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH § 16-3 (3d ed. 1996) (noting that "very often disputes that might have been decided by reference to the rights of assembly, petition, or free association are decided as 'speech' cases" and that cases involving the right to march are usually decided within the "traditional public forums" framework of free speech jurisprudence). First Amendment scholars have thus far largely neglected the right of assembly. The only substantial works on the right of assembly are M. Glenn Abemathy's The Rjght of Assembly and Association and C. Edwin Baker's Human Liberty and Freedom of Speech, both published in the 1980s.
21. See M. GLENN ABERNATHY, THE RIGHT OF ASSEMBLY AND ASSOCIATION (1981);
22. C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989).
23. See, e.g., LOUIS FISHER & DAVID GRAY ADLER, AMERICAN CONSTITUTIONAL LAW (7th ed. 2007);
24. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT (2d ed. 2003);
25. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988).
26. See 5 ROTUNDA & NOWAK, supra note 10, §§ 20.53-.55 (providing the most substantive discussion of the right of assembly, but making no reference to its political origins and functions). Only two treatises make brief reference to the distinctiveness of the right.
27. See WILLIAM VAN ALSTYNE, THE AMERICAN FIRST AMENDMENT IN THE TWENTY- FIRST CENTURY 30 (3d ed. 2002) (encouraging students to consider whether the right to peaceable assembly could fruitfully inform analyses of association cases);
28. SMOLLA, supra note 10, § 16:3 (devoting a single sentence to the idea that "the elemental right of people to peaceably assemble to demonstrate against the government is the very essence of 'people power' in a democracy").
29. See discussion infra pp. 569-72.
30. The cities in the sample were: Boston, Massachusetts; Chicago, Illinois; Dallas, Texas; Detroit, Michigan; Fort Wayne, Indiana; Greensboro, North Carolina; Houston, Texas; Los Angeles, California; Nashville, Tennessee; New York City, New York; Philadelphia, Pennsylvania; Phoenix, Arizona; Portland, Oregon; Rochester, New York; St. Louis, Missouri; San Antonio, Texas; San Diego, California; San Jose, California; Santa Ana, California; and Wichita, Kansas. San Jose has no permit requirement for assemblies in its parks. A permit is only required if sound amplification devices will be used or equipment will be brought into the park. Los Angeles requires permits for assemblies in some but not all of its parks. The data and analysis are on file with the author. The sample included the ten largest American cities in 2005 as well as ten cities selected at random with populations analogous to the ten largest American cities in 1880. My results are consistent with those who have previously tried to determine how extensive permit requirements are in American cities. In 1989, for example, C. Edwin Baker asserted that many cities have ordinances "which, except for a few narrow exemptions, require[] parade permits for virtually any procession or assembly on outdoor public space." BAKER, supra note 10, at 142. Baker noted laws in Atlanta, Georgia; Columbus, Ohio; Denver, Colorado; Omaha, Nebraska; and San Antonio, Texas, but presumably was relying more broadly on the eighteen cities that responded to his survey.
31. See id. at 322 n.25, 324 n.37. In 1981, Glenn Abernathy used ordinances from Ann Arbor, Michigan; Buffalo, New York; Kenosha, Wisconsin; Los Angeles, California; Neodesha, Kansas; Reading, Pennsylvania; and San Francisco, California to illustrate the variation in contemporary permit requirements. ABERNATHY, supra note 10, at 141-43.
32. CITY OF PORT WAYNE, IND., APPLICATION FOR PUBLIC ASSEMBLY, PARADE, NEIGHBORHOOD ASSOCIATION PARADE OR BLOCK PARTY PERMIT, available at http://www.cityc4fortwayne. org/images/stories/Public%20Assembly%20Permit.pdf (last visited Feb. 8, 2009).
33. NYPD, APPLICATION FOR PARADE PERMIT, available at http://www.nyc.gov/html/nypd/downloads/pdf/permits/online- application-for-parade-permit.pdf (last visited Feb. 8, 2009).
34. N.Y. CITY DEP'T OF PARKS & RECREATION, SPECIAL EVENT PERMIT APPLICATION, available at http://nycgovparks.org/sub-permits- and-applications/images-and-pdfs/event-application-from.pdf (last visited Dec 20, 2008).
35. Fee provisions, and by implication indemnity agreements or liability insurance requirements, are not per se unconstitutional. Fee requirements that merely recoup administrative expenses are constitutional. See COX v. New Hampshire, 312 U.S. 569, 577 (1941) (holding that the U.S. Constitution does not prohibit a fee intended to meet the expenses incident to maintaining public order or administrating the licensing process);
36. Sullivan v. City of Augusta, 511 F.3d 16, 41-42 (1st Cir. 2007), cert, denied, 129 S. Ct. 112 (2008) (upholding the imposition of $2000 in fees and costs as applied to an individual who could not afford them, because an "indigency exception" is not required where ample alternative forums for speech exist);
37. Nationalist Movement v. City of York, 481 F.3d 178, 183-84 (3d Cir. 2007) (holding a flat fee constitutional because it was nominal, content neutral, narrowly tailored to recoup administrative costs, provided a waiver for the indigent, and did not permit discretion in setting the application fee);
38. S. Or. Barter Fair v. Jackson County, 372 F.3d 1128, 1140-41 (9th Cir. 2004) (upholding a fee provision that allowed public officials to charge a fee reasonably calculated to reimburse the county for the necessary costs of processing permit applications);
39. see also CAMP Legal Def. Fund, Inc. v City of Atlanta, 451 F.3d 1257, 1282 (11th Cir. 2006) (upholding an insurance requirement where its application was limited to events expecting over ten thousand people and where the amount of insurance required did not depend on content but on the size of the event);
40. Thomas v. Chi. Park Dist., 227 F.3d 921, 925 (7th Cir. 2000) (upholding an insurance requirement where rules required officials to calculate the insurance amount based on the size of the event and the nature of the facilities involved), aff'd on other grounds, 534 U.S. 316 (2002). On the other hand, fees for obtaining a permit cannot be correlated to the message of the assembly or be left to the whim of the administrator. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 133-34 (1992) (holding a fee provision unconstitutional because "[t]he decision how much to charge ... is left to the whim of the administrator" and because the fee would "depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content");
41. Church of the Am. Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 680-82 (7th Cir. 2003) (holding that because the provision required police to consider a parade's message and the response of spectators to that message, it constituted an impermissible content-based restriction);
42. Transp. Alternatives, Inc. v. City of N.Y., 340 F.3d 72, 78 (2d Cir. 2003) (holding unconstitutional a provision under which an official had complete discretion over whether to impose a fee of up to $25,000 for a noncommercial event);
43. see also Nationalist Movement, 481 F.3d at 184-87 (holding unconstitutional a provision requiring applicants to '"promise and covenant to bear all costs of policing, cleaning up and restoring the park' and 'reimburse the City for any such costs incurred by the City,'" because at the city's whim a speaker could be required to pay for content-related costs);
44. Burk v. Augusta-Richmond County, 365 F.3d 1247, 1256-57 (11th Cir. 2004) (holding an indemnification requirement unconstitutional where there were no guidelines as to how it was to be administered).
45. Chi., Ill., Office of Emergency Mgmt. & Commc'n, Application for Permit-Parade Using the Public Way, available at http://egov. cityofchicago.org/webportal/COC-EDITORIAL/parappl.pdf (last visited Dec. 20, 2008).
46. Id.
47. Id. at 1-2.
48. Id. at 3.
49. Id. Like Chicago, Philadelphia has both an insurance and indemnification requirement. CITY OF PHILA. OFFICE OF THE MANAGING DIR., REGULATION GOVERNING PERMITS FOR DEMONSTRATIONS ON CITY PROPERTY §§ 15-16, at 9 (2003), available at http://www.phila.gov/mdo/ pdfs/Permit-Policy-for-De.pdf. The former can be waived for financial hardship. Id. § 19, at 10.
50. GREENSBORO, N.C., GREENSBORO CITY CODE § 26-249(c)(4) (2005) (emphasis added). A "demonstration" is defined as "any formation, procession or assembly of persons which, for the purpose of expressive activity, is: (1) To assemble or travel in unison on any street in a manner that does not comply with normal or usual traffic regulations or controls; or (2) To gather at a public park or other public area." Id. § 26-247.
51. FORT WAYNE, IND., CODE OF ORDINANCES § 101.03 (1996).
52. NASHVILLE, TENN., CODE OF THE METRO. GOVT OF NASHVILLE AND DAVIDSON COUNTY, TENN. § 12.56.020-040 (1989). A "parade" is defined as "any march or procession of any kind, in or upon any street, sidewalk, alley or other public place, held for the purpose of expressing First Amendment freedoms." Id. § 12.56.020.
53. United for Peace & Justice v. City of N.Y., 243 F. Supp. 2d 19 (S.D.N.Y.), aff'd per curiam, 323 F.3d 175 (2d Cir. 2003).
54. Id. at 23.
55. Id. at 27 (emphasis added).
56. See, e.g., David Olinger, Convention-Week Activities to Require Special Permits, DENVER POST, Mar. 2, 2008, at B2 ("The city of Denver declared Friday that the 2008 Democratic National Convention is an 'extraordinary event' that requires the adoption of special procedures for permits during convention week.").
57. See James J. Knicely & John W. Whitehead, The Caging of Free Speech in America, 14 TEMP. POL. & CIV. RTS. L. REV. 455, 457, 462-67, 472-75 (2005) (describing how cities use concerns about "security" to insist that major political protests be cordoned off as well as their tactics of control). Knicely and Whitehead suggest that these tactics are gaining ground partly because of Presidential Decision Directive 62, initially promulgated by President Clinton, which provides a role for the Secret Service where an event is designated a "National Security Special Event."
58. See id. at 470-72. Their claim is that the Secret Service is disseminating such tactics to local police departments for use in nondesignated events as well.
59. See id.
60. Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1217 (10th Cir. 2007) (describing the city's security zone, a perimeter establishing a radius around the hotel hosting. the NATO conference, as "completely closed to all persons except conference attendees, accredited media, [hotel] employees, individuals residing in the security zone, guests of individuals residing in the security zone, and personnel servicing the [hotel] and the residences within the security zone").
61. See Editorial, Convention Protesters Have Right to Be Heard, CHI. SUN-TLMES, Aug. 11, 2008, at 31.
62. See ACLU of Colo. v. City & County of Denver, 569 F. Supp. 2d 1142, 1151-60 (D. Colo. 2008) (describing full details of Denver's plan for the Democratic National Convention's demonstration zone).
63. See id. at 1153-57. Protests were also allowed in Denver's parks, so long as necessary permits had been obtained. Id. at 1184;
64. see also P. Solomon Banda, ACLU Ends Challenge to Convention Rules, PRESS-REGISTER (Mobile, Ala.), Aug. 8,2008, at A2.
65. ACLU of Colo., 569 F. Supp. 2d at 1156.
66. See Citizens for Peace in Space, 477 F.3d at 1218-19 (noting that the location afforded to plaintiffs provided "no direct line of sight" to the conference center and "could barely be seen, if at all, from" where attendees were staying);
67. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11 (1st Cir. 2004) (noting that the city's division of the area near the Convention into two separate security zones "left little opportunity for groups wishing to demonstrate to do so within sight and sound of the delegates" to the 2004 Democratic National Convention "and severely curtailed any chance for one-on-one conversation"). In Denver, the American Civil Liberties Union (ACLU) was unable to convince the district court that the places allocated for protests and processions were not within "sight and sound" of the delegates.
68. See ACLU of Colo., 569 F. Supp. 2d at 1180-82. However, it was able to secure the installation of a public address system to ensure that delegates could at least hear protestors.
69. See Banda, supra note 35, at A2.
70. See Chris Havens, Protesting at the RNC? Forms Due March 3: St. Paul Outlines Its Process for Getting Permits for Demonstrations or Large-Group Park Space During the Republican National Convention, MINNEAPOLIS STAR TRIB., Feb. 23, 2008, at 3B.
71. See Chuck Plunkett & David Olinger, City Bungles Convention Park Permits, DENVER POST, Mar. 19, 2008, at Al;
72. see also April M. Washington, Suit Threat Heats Up; Abortion Foes Seek Permits to Protest; City Still Deciding, ROCKY MOUNTAIN NEWS (Denver), Nov. 2, 2007, at 5 (noting that Denver began accepting special-event permit applications for the 2008 Democratic National Convention on November 1, 2007). Denver also had two separate permit processes for parades during the convention.
73. See ACLU of Colo. v. City and County of Denver, 569 F. Supp. 2d 1142, 1156-59 (D. Colo. 2008).
74. See, e.g., Citizens for Peace in Space, 477 F.3d at 1220-25 (upholding Colorado Springs' security zone as a valid time, place, and manner regulation because the city did not need to use the least intrusive means of achieving its interests);
75. Bl(a)ck Tea Soc'y, 378 F.3d at 13-14 (upholding the city's "designated demonstration zone," which the lower court characterized as resembling an internment camp);
76. ACLU of Colo., 569 F. Supp. 2d at 1149 (finding that Denver's restrictions on protests and processions at the 2008 Democratic National Convention did not infringe the plaintiffs' rights under the First Amendment);
77. see also Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) (upholding as a riot control measure a no-speech zone in Seattle during the 1999 WTO meeting). The ACLU decided not to appeal the district court's decision to uphold Denver's fenced-in demonstration zone and end parades a quarter-mile from the convention site.
78. See Banda, supra note 35, at A2.
79. See Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2002) (upholding the Chicago Park District's permit requirement as a valid time, place, and manner regulation and rejecting the suggestion that as a prior constraint it was subject to the procedural safeguards of Freedman v. Maryland, 380 U.S. 51 (1965));
80. COX v. New Hampshire, 312 U.S. 569, 576 (1941) (upholding New Hampshire's permit requirement as a valid regulation of the time, place, and manner of public assembly).
81. These cases are all decided as cases involving speech on public property. The right of peaceable assembly is not considered separately.
82. See United States v. Grace, 461 U.S. 171, 177 (1983) (explaining the presumption of access to public forums);
83. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (explaining that streets and parks are "quintessential public forums");
84. see also Robert C. Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713, 1749-52 (1986) (summarizing the Court's doctrinal structure established in Perry, which distinguishes between public, nonpublic, and limited public forums).
85. See, e.g., Thomas v. Chi. Park Dist., 534 U.S. at 323 (explaining that the licensing official must not "enjoy[] unduly broad discretion in determining whether to grant or deny a permit");
86. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969) (striking down an ordinance where the decision to grant or to withhold a permit was "guided only by [the Commission's] own ideas of 'public welfare, peace, safety, health, decency, good order, morals or convenience'" and the guarantee of free speech and assembly was "contingent upon the uncontrolled will of an official").
87. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("[I]n a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication ... ."' (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984))).
88. Despite the explosion of literature on the First Amendment, legal academics have by and large ignored such requirements. In the last decade, there have been a few articles arguing that courts should heighten the level of scrutiny they apply when considering the types of permits issued by municipalities in the name of security. See, e.g., Knicely & Whitehead, supra note 31, at 481-90, 483 (arguing that "the standard time, place, and manner test" applied by lower courts is "legally inappropriate and inadequate to the magnitude of the interference with free speech interests" in recent cases involving radical restructuring of space);
89. Timothy Zick, Speech and Spatial Tactics, 84 TEX. L REV. 581, 583, 587-89 (2006) ("not disputing] that the state must sometimes control the place of expression" because "[s]pace ... is a limited resource" but arguing that situations where the state has created places for expression should be subject to more exacting scrutiny). Otherwise, there is no debate in the literature. The last strong argument questioning the constitutionality of a permit requirement was posed nearly twenty years ago.
90. See BAKER, supra note 10, at 142-44 (proposing as an alternative a voluntary permit system in which government managerial services would be conditioned on applying for a permit).
91. See JOEL H. SILBEY, THE AMERICAN POLITICAL NATION, 1838-1893, at 47 (1991) (noting that "[v]oters were at the polls several times in each twelve-month period, year in and year out" in the 1840s and after);
92. DAVID WALDSTREICHER, IN THE MIDST OF PERPETUAL FETES: THE MAKING OF AMERICAN NATIONALISM, 1776-1820, at 184-85 (1997) (explaining that elections were both annual and seasonal events at the turn of the nineteenth century, while reminding us that not all elections were popular elections). Increased frequency and regularity of elections in the new states was a central voting reform instituted with independence.
93. See ROBERT J. DLNKIN, VOTING IN REVOLUTIONARY AMERICA: A STUDY OF ELECTIONS IN THE ORIGINAL THIRTEEN STATES, 1776-1789, at 4, 90 (1982).
94. See DLNKIN, supra note 47, at 98;
95. see also John C. Schneider, Mob Violence and Public Order in the American City, 1830-1896, at 62 (Aug. 1971) (unpublished Ph.D. dissertation, Univ. of Minn.) (on file with author) (describing an 1834 three-day election in New York City).
96. See EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 193-94 (1988) (illustrating this point using the role of women in the festivities on election days);
97. see also WILLIAM D. PLERSEN, BLACK YANKEES: THE DEVELOPMENT OF AN AFRO-AMERICAN SUBCULTURE IN EIGHTEENTH CENTURY NEW ENGLAND 117-28 (1988) (discussing the participation of northern black slaves in Negro Election Day, an event sponsored in part by elite white slave holders to coincide with Election Day).
98. WALDSTREICHER, supra note 47, at 184.
99. See id.
100. See MARY P. RYAN, CIVIC WARS: DEMOCRACY AND PUBLIC LIFE IN THE AMERICAN CITY DURING THE NINETEENTH CENTURY 94-95 (1997) (describing street crowds in the 1830s and 1840s and their relation to election competition);
101. SILBEY, supra note 47, at 143 ("Elections were special events [in the 1840s]. Amid the continuous electioneering and political arguments, picnics, drinking, and boisterous celebration went on throughout each polling day."). For a particularly colorful account of an election dispute in the 1790s in which street politics played a central role,
102. see ALAN TAYLOR, WILLIAM COOPER'S TOWN: POWER AND PERSUASION ON THE FRONTIER OF THE EARLY AMERICAN REPUBLIC 166-96 (1995).
103. See SIMON P. NEWMAN, PARADES AND THE POLITICS OF THE STREET: FESTIVE CULTURE IN THE EARLY AMERICAN REPUBUC 46, 65-66 (1997) (showing that during the 1790s the celebration of Washington's Birthday and, later, the Fourth of July, were established as public holidays, and how they quickly became sites of partisan contest and opportunities to criticize the governing Federalists);
104. see also WALDSTREICHER, supra note 47, at 53-107 (describing street politics during the ratification debates and the relationship of street politics and the press in an evolving nationalism in the 1780s). The political meaning of these public holidays was facilitated by the press' publication and republication of descriptions of them.
105. See id. at 18.
106. Jeffrey L Pasley, The Cheese and the Words: Popular Political Culture and Participatory Democracy in the Early American Republic, in BEYOND THE FOUNDERS: NEW APPROACHES TO THE POLITICAL HISTORY OF THE EARLY AMERICAN REPUBLIC 31, 40 (Jeffrey L. Pasley et al. eds., 2004);
107. accord WALDSTREICHER, supra note 47, at 68 (noting that nationalist holidays in large towns in the 1780s were celebrated in "overlapping sets of rituals: the muster of the militia, the procession, an oration; the semipublic tavern gatherings and banquets; and popular revelry, especially at night").
108. During the 1790s, in particular, public toasts were used to communicate partisan affiliations and positions. "No mere drinking game, political banquet toasts served, and were intended to serve, as informal platforms for the community, party, or faction that held the gathering. Pointed and quite specific political sentiments were expressed, and even the patriotic boilerplate was calibrated to reflect the values of the toasting group." Pasley, supra note 54, at 40. "[S]lates of toasts [were] printed in early national newspapers [and] constituted powerfully partisan manifestoes of political sentiment." NEWMAN, supra note 53, at 93. They "were written well in advance so that the sentiments they expressed could be carefully controlled: custom ordained that nobody would drink to a toast if he disagreed with the sentiment it expressed, so it was vital that the toasts offered were acceptable to all present."
109. Id. at 94; accordWALDSTREICHER, supranote 47, at 219-21 (describing the process of revising and adopting public toasts).
110. NEWMAN, supra note 53, at 1-2 (emphasis added). For further description
111. see id. at 122-25.
112. See id. at 130 (explaining that despite its grand scale, the celebration "was typical of many hundreds of French Revolutionary civic festivals held in the United States during Washington's presidency").
113. Id. at 2.
114. Id. at 109.
115. See id. at 95-96. Streets and public squares were more likely to be utilized for public meals by those without resources to hire a hall. So "while Boston's elite celebrated Washington's birthday in 1793 with a civic feast at Concert Hall, a mixed race group of mariners, laborers, and artisans held their own celebration in the streets."
116. Id. at 65. Streets were also more often used, during this period, by the opposition. Between 1793 and 1801, while "[o]ver three-quarters of the Federalist civic feasts [for the Fourth of July] took place at expensive hotels and inns[,] ... over half of the oppositional Independence Day feasts were staged in the open air."
117. Id. at 89, 220 n.18. These figures are based on a survey of thirty-eight Fourth of July feasts reported in three local Philadelphia newspapers between 1793 and 1801.
118. Id. at 220 n.18. Eighteen of the thirty-eight were held outdoors.
119. Id.
120. See RYAN, supra note 52, at 58-131 (describing the role of public performance and public meetings in defining the public sphere prior to the Civil War). By the 1830s, patriotic holidays were no longer funded by the political parties. They were instead publicly financed.
121. Id. at 69.
122. SUSAN G. DAVIS, PARADES AND POWER: STREET THEATRE IN NINETEENTH-CENTURY PHILADELPHIA 49-51 (1986).
123. Id. at 148.
124. See also id. at 147-50, for fuller description of temperance ceremonies.
125. Id. at 33 ("The streets enabled workers, poor people, and racial minorities to broadcast messages to large numbers of people, which partly explains the vibrant popularity of parades of all kinds and the variety of autonomously produced mobile performances. The street was shared more equally than any other space.").
126. WALDSTREICHER, supra note 47, at 329.
127. Id. at 330. Waldstreicher importantly emphasizes that access to streets, informally, if not legally, was more limited for African Americans. He notes, for example, that "[t]he first recorded black nationalist celebration [which] took place in New York City on July 5, 1800" was postponed by a day "reportedly because the Tammany Society, merchants, and mechanics objected to a black parade on the Fourth."
128. Id. at 328-29.
129. See DAVIS, supra note 62, at 66;
130. see also id. at 117-25 (describing and analyzing the procession). In 1780, Benedict Arnold's treason prompted Philadelphians to put together a mocking procession in his honor.
131. Id. at 75 (describing the event). Taking to the streets was part of a tradition of popular politics and ritualized drama, one that played a central role in the American Revolution.
132. Id. at 66.
133. Id. at 135-37 (describing the development of the general strike and the various parades with fife and drum that took place to foster support for the strike). The actions taken by labor in Philadelphia were not unique. "In Albany in 1826, a journeymen carpenters' society" organized a strike in which "[o]ne hundred and twenty-five to one hundred fifty men assembled opposite newly erected buildings ... which they doubtless had worked on, 'thence they traversed the whole city, calling at several workshops, each carrying a piece of a pine sash staff as an emblem of their profession and marching two and two in a peaceable and orderly manner.' In the afternoon the journeymen reassembled, renewed their resolution, and forwarded a proposal for a shilling-a-day increase." Id. at 133 (quoting ALBANYARGUS, reprinted m DEMOCRATIC PRESS(Philadelphia), May 16, 1826).
134. Id. at 33.
135. The most important form of petitioning was the "legislative petition" used to allow a person or group of people to communicate a grievance to the legislature while suggesting a remedy. The legislature was legally obligated, originally under customary constitutional law, to consider a petitioner's grievance, though not necessarily to agree to the proposed remedy. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 14 ( 2004) (explaining that among the settled principles of fundamental law, inherited by American revolutionaries, was the right to petition the government);
136. Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J 142, 144 (1986) (noting that legislatures were expected to send petitions to committees for consideration);
137. see also Gregory A. Mark, The VestigiaL Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153, 2199-2203 (1998) (describing this right in the first state constitutions).
138. "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST. amend. i.
139. See, e.g., BENJAMIN L OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 188 (1832) ("For, it cannot be supposed that [the people] have a right to assemble for the purpose of petitioning only, when a short consultation may perhaps be sufficient to convince them, either that [there] is no grievance at all; or, that it is unavoidable; or, that it will remedy itself ... .");
140. see also 1 WILLIAM BLACKSTONE, BLACKSTONE'S COMMENTARIES, app. at 299-300 (St. George Tucker ed. 1803);
141. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 1886-1888 (1833).
142. RAYMOND C. BAILEY, POPULAR INFLUENCE UPON PUBLIC POLICY: PETITIONING IN EIGHTEENTH-CENTURY VIRGINIA 23 (1979).
143. In 1793, residents of Annapolis "held open public meetings to arrange their [Fourth of July] celebration." NEWMAN, supra note 53, at 93, 221 n.41.
144. As one prominent historian of the public sphere has commented, "New York politics in the 1830s was an endless series of public meetings" regarding firefighting, policing, street improvements, and public health. RYAN, supra note 52, at 97.
145. Id.
146. See id. at 32-37. Not all public meetings took place in streets and parks. Antebellum cities were flooded with "public hall[s], a generic
147. Id. at 36. Not all groups had access to these halls: Some borrowed, while some turned to the streets.
148. Id. at 36-37.
149. See DAVIS, supra note 62, at 130 (describing activities of Jackson's supporters).
150. Id.
151. Id. at 131.
152. Id. For another example from the same period see RYAN, supra note 52, at 94-95 ('"After the adoption of the resolutions a motion was carried that the meeting adjourn to the street in front of the Hall and form a procession with their antimonopoly Banners, Flags, etc., which was accordingly carried - and some thousands of the meeting bearing torches, candles, etc., marched up the Bowery cheering their Democratic citizens on the way.'" (citation omitted) (describing the October 1835 procession of Loco-Foco in New York City)).
153. John W. Wertheimer, Free-Speech Fights: The Roots of Modern Free-Expression Litigation in the United States 136 (Jan. 1992) (unpublished Ph.D. dissertation, Princeton University) (on file with author) (emphasis added). The exceptions discussed include an 1810 New York City ordinance prohibiting public worship of certain kinds absent prior permission from city officials, id. at 139 n.23, and an 1858 New Orleans ordinance forbidding public addresses by "colored person[s]" absent "written permission from the Mayor,"
154. id. at 143. For additional evidence see supra notes 7-9 and accompanying text.
155. In re Frazee, 30 N.W. 72, 75 (Mich. 1886). It is not clear whether any street gatherings were charged, or successfully prosecuted, for creating a public nuisance.
156. In State v. Baldwin, the North Carolina Supreme Court refused to find an indictment for nuisance where a group assembled loudly at a public meeting house shouting profanities and disrupting a singing school, because "[t]o render an act indictable as a nuisance, it is necessary that it should be an offense so inconvenient and troublesome, as to annoy the whole community." 18 N.C. (1 Dev. & Bat.) 201, 201-02 (N.C. 1835). By contrast, in Barker v. Commonwealth, the Pennsylvania Supreme Court held that a crowd could be indicted for a common nuisance because "[t]he streets are common highways, designed for the use of the public in passing and repassing. ... No one has a right to obstruct a public street by collecting therein a large assemblage of men and boys, for the purpose of addressing them in 'violent, loud, and indecent language.'" 19 Pa. 412, 412-13 (1852).
157. Barker, however, was subsequently significantly limited. See Fairbanks v. Kerr, 70 Pa. 86, 91-92 (1872) ("But it cannot be conceded ... that making a speech in the street is ipso facto and per se a public nuisance. The indictment against Barker was for obstructing the streets of Pittsburg, through crowds collected by means of violent, loud, and indecent language addressed to those passing by. ... A street may not be used, in strictness of law, for public speaking: even preaching or public worship ... . but it does not follow that every one who speaks or preaches in the street, or who happens to collect a crowd therein by other means, is therefore guilty of the indictable offence of nuisance. His act may become a nuisance by his obstruction of the public highway, but it will not do to say it is a nuisance per se. Such a stringent interpretation of the case of Barker is scarcely suited to the genius of our people or to the character of their institutions, and would lead to the repression of many usages of the people now tolerated as harmless, if not necessary."). What is clear is that, as of 1873, Grand Rapids, Michigan (the city whose ordinances were being reviewed in Frazee) had on the books several prohibitions of gatherings in public that could be considered per se nuisances, the earliest of which was passed in 1857.
158. See GRAND RAPIDS, MICH., ORDINANCES OF THE CITY OF GRAND RAPIDS COMPILED IN 1873, at 103-04,147-52 (1873).
159. PORTLAND, ME, THE CHARTER AND ORDINANCES OF THE CITY OF PORTLAND TOGETHER WITH ACTS OF THE LEGISLATURE, RELATING TO THE CITY, AND TO MUN. MATTERS 421 (1881).
160. Id. at 423.
161. See id. at 55-57. The 1881 charter for Portland gave local officials authority to restrict the access of "horses, carriages or other vehicles" to city streets on days of public celebration.
162. Id. at 38.
163. NEWMAN, supra note 53, at 98-99.
164. Id. at 99.
165. Id. (emphasis added).
166. Id.
167. Id.
168. Id. (emphasis added).
169. Gitlow v. New York, 268 U.S. 652, 666 (1925) ("For present purposes we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.");
170. see also De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (holding that the right of assembly is a fundamental liberty covered by the Fourteenth Amendment).
171. LEON WHIPPLE, OUR ANCIENT LIBERTIES: THE STORY OF THE ORIGIN AND MEANING OF CIVIL AND RELIGIOUS LIBERTY IN THE UNITED STATES 101 (1927);
172. cf. Slaughter-House Cases, 83 U.S. 36, 114 (1872) (Bradley J., dissenting) ("The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation's history.").
173. See generally 2 J AMES KENT, COMMENTARIES ON AMERICAN LAW * 1 - 12 (explaining the English origins of the various rights contained in the states' bills of rights).
174. WHIPPLE, supra note 95, at 101.
175. Higginson, supra note 71, at 155-56 (quoting 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1026 (1971)).
176. See WHIPPLE, supra note 95, at 102 (noting that the first major Supreme Court case to address the right was United States v. Cruikshank issued in 1875);
177. accord 2 JOHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES § 326, at 671 (Henry St. George Tucker ed., 1899) ("The last clause, in reference to the right of the people peaceably to assemble and to petition the government, etc., has not been the subject of adjudication.").
178. United States v. Cruikshank, 92 U.S. 542, 551-52 (1875).
179. Id. at 552.
180. Accord CIO v. Hague, 25 F. Supp. 127,137 (D.N.J. 1938) (lamenting the "paucity of material on free assembly" especially as compared to the vast literature on free speech).
181. See, e.g., 1 BLACKSTONE, supra note 73;
182. KENT, supra note 95, at *1-37 (including no discussion of the right of assembly at all);
183. see also 3 STORY, supra note 73.
184. BENJAMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN 187-88 (Boston, Marsha, Kapen & Lyon 1852).
185. While the author (and as such the pedigree) of the article is unknown, it was relied upon by an important nineteenth-century criminal law treatise. See FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OFTHE UNITED STATES 722 (2d ed. 1852).
186. Riots, Routs, and Unlawful Assemblies, 3 AM. L. MAG. 350, 351 (1844). The author explains he is leaving aside statutory enactments to focus on the common law.
187. Id. at 353.
188. Id. (emphasis added) (internal quotation marks omitted) (citing a charge by Baron Alderson to the grand jury delivered at the Monmouth summer assizes in 1839 regarding the Newport riots).
189. Id.
190. Id.
191. Id. at 354.
192. Id. at 353-54. This is because gatherings "which look to violence and not to reason and the influence of a strong expression of public opinion, do not fall within the protection of the constitutional guarantees."
193. Id. at 357.
194. Id. at 360 ("It is evidently of the highest importance to the public peace to have it recognized and established, that that interference need not wait for any actual outbreak or movement of the assembly sufficient to constitute an actual rout or riot.");
195. accord FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 528 (Phila., James Kay, Jun and Brother 1846) ("An unlawful assembly may be dispersed by a magistrate whenever he finds a state of things existing, calling for an interference in order to the preservation of the public peace. He is not required to postpone his action until the unlawful assembly ripens into an actual riot.");
196. Edmund H. Bennett, Public Meetings and Public Order, 4 LQ. REV. 257, 262 (1888) ("An unlawful assembly may be dispersed by a magistrate whenever he finds a state of things existing calling for interference in order to preserve the public peace. He is not required to postpone his action until the unlawful assembly ripens into an actual riot." (citation omitted)).
197. Riots, Routs, and Unlawful Assemblies, supra note 105, at 364.
198. Id. at 354.
199. See generally id. at 354-57. Leon Whipple's account of the federal right in the 1920s is consistent: "What did the guarantee [of free assembly] mean in 1791? It meant the protection of orderly public gatherings to discuss political and religious matters, especially the conduct of government, its officers and laws, or even its fundamental form ... . The Founders felt that no meeting should be challenged unless for some overt act, the actual breaking of a law." WHIPPLE, supra note 95, at 103. "Nor mas there any desire as there is to-day to judge of dangers to the public peace by the 'tendency' of the meeting or some possible effect upon the hearers. The peace to be preserved was the actual present public order."
200. Id. at 104 (emphasis added).
201. Riots, Routs, and Unlawful Assemblies, supra note 105, at 364.
202. Id.
203. ANNA LAURENS DAWES, HOW WE ARE GOVERNED: AN EXPLANATION OF THE CONSTITUTION AND GOVERNMENT OF THE UNITED STATES 309 (1885) (emphasis added);
204. accord James M. Jarrett & Vernon A. Mund, The Right of Assembly, 9 N.Y.U. L.Q. REV. 1, 4, 18 (1931) (discussing the crime of unlawful assembly as a recognition of the limits to the right of assembly).
205. 2 JOHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES § 326 (Henry St. George Tucker ed., 1899) (emphasis added).
206. Riots, Routs, and Unlawful Assemblies, supra note 105, at 354.
207. This aspect of the substance of the right is uncontroversial. In 1939, the U.S. Supreme Court recognized that the right includes the right to assembly in public streets, declaring that "streets and parks ... [from] time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515-16 (1939).
208. DAVIS, supra note 62, at 35.
209. Id. at 142.
210. Id. at 168 ("Philadelphia began requiring parade and demonstration permits after the late 1870s.").
211. Permit requirements were rare in 1881. By 1930, however, permits were frequendy required in the largest American cities for parades, gatherings, and speeches in public streets and parks. Preliminary research into why such ordinances were passed suggests that repression (initially of the Salvation Army) rather than managerial needs drove reform. See Abu El-Haj, supra note 7, at passim;
212. see also DAVIS, supra note 62, at 168 (suggesting that "[f]ear of strikes, gatherings, and mass meetings prompted some cities to legislate limits on public meetings and assemblies," and that "[m]ayors were given the prerogative of banning assemblies during civil emergencies").
213. Compare City of Chi. v. Trotter, 26 N.E. 359 (111. 1891), Anderson v. City of Wellington, 19 P. 719 (Kan. 1888),
214. In re Frazee, 30 N.W. 72 (Mich. 1886),
215. and In re Garrabad v. Dering, 54 N.W. 1104 (Wis. 1893), with Commonwealth v. Abrahams, 30 N.E. 79 (Mass. 1892);
216. see also Rich v. City of Naperville, 42 Ill. App. 222 (App. Ct. 1891). Glenn Abernathy reached a similar, though not identical, conclusion based on his review of the cases. He found that "[t]he various state courts involved, excepting Massachusetts, held that parading peaceably and lawfully was a fundamental right of Americans and could not be abridged by the municipal requirement of a permit." ABERNATHY, supra note 10, at 93. We differ, however, because he asserts that the courts differentiated between parades and public meetings in the streets.
217. See id. at 90. Courts were protective of street parades but not of street meetings. This, he speculates, was either because a parade is simply multiple exercises of an individual's right to travel or, more likely, because acceptable groups engage in the former but not the latter.
218. Id. at 90-91. Abernathy's read of the cases, in this regard, is unpersuasive for three reasons. First, as he concedes, the principled distinction is flimsy; second, the Salvation Army was not acceptable at the time; and third, the alleged difference disappears when one organizes the cases in relation to the Supreme Court's perceived adoption of Massachusetts's position in Davis v. Massachusetts, 167 U.S. 43 (1897). Putting Massachusetts aside then, the state court cases that voided municipal efforts to regulate street parades are pre-Davis, while the cases Abernathy cites upholding permit requirements for public meetings are post-Davis.
219. Compare ABERNATHY, supra note 10, at 93,
220. with id. at 64-71.
221. Moreover, the latter generally cite to the Supreme Court's decision in Davis, suggesting it was the Supreme Court's perceived sanction of permit requirements that explains those courts' rulings on ordinances governing public assemblies.
222. See, e.g., Love v. Phalen, 87 N.W. 785, 787-88 (Mich. 1901) (quoting the Supreme Court's decision in Davis at length before upholding an ordinance requiring a permit prior to giving a public address in public places and, thus, implicitly overruling In re Frazee);
223. Coughlin v. Chi. Park Dist., 4 N.E.2d 1, 7-9 (Ill. 1936) (relying foremost on Davis to uphold the park department's denial of a permit to hold a lecture on political economy challenged, inter alia, on free speech grounds);
224. People ex rel. Doyle v. Atwell, 133 N.E 364, 365-66 (N.Y. 1921) (relying on Davis to support the proposition that "[i]t is too well settled ... that a municipality may pass an ordinance making it unlawful to hold public meetings upon the public streets without a permit ... to require discussion");
225. cf. William E. Lee, Modernizing the Law of Open-Air Speech: The Hughes Court and the Birth of Content-Neutral Balancing, 13 Wm. & MARY BILL RTS. J. 1219, 1235 (2005) ("By devaluing open-air speech and stressing the proprietary powers of the government, Davis set the tone for a generation of opinions that were plainly hostile to the idea that streets were appropriate to use for expressive activities."). Other authors have argued that state courts simply were not particularly protective or concerned about the exercise of police powers to curb expression through assemblies.
226. E.g., Margaret A. Blanchard, Filling in the Void: Speech and Press in State Courts Prior to Gitlow, in THE FIRST AMENDMENT RECONSIDERED: NEW PERSPECTIVES ON THE MEANING OF FREEDOM OF SPEECH AND PRESS 14, 28 (Bill F. Chamberlin & Charlene J. Brown eds., 1982) ("The willingness of courts to sanction the use of the state's police power to protect the general welfare was just as apparent in cases dealing with ... more unorthodox methods of spreading information such as unauthorized parades in the public streets ... [and] speaking in public parks oh unpopular subjects ... ."). Blanchard, and the others who have taken this view, have either focused on state court cases decided after Davis, or have failed to distinguish between the attitudes of state courts to uses of streets closely tied to politics (assemblies, meetings, and parades) as compared to other expressive uses (drumming or music).
227. See Abrahams, 30 N.E. at 79;
228. accord ABERNATHY, supra note 10, at 92 (explaining that the Massachusetts high court was an outlier on this issue). Among appellate courts, I have found only one during this period that upheld an ordinance requiring a permit for a meeting, speech, or parade on a public street or in a public park.
229. See City of Bloomington v. Richardson, 38 111. App. 60 (App. Ct. 1890).
230. Until incorporation, the inherited English right of peaceable assembly was primarily secured for Americans by the states under their constitutions.
231. See Anderson, 19 P. at 723 ("It might be proper, on account of the peculiar conditions of affairs in a city, that street parades should be confined to certain streets, or should be conducted within certain hours of the day, or should be forbidden in the night-time, or that the police department should have some previous notice ... .");
232. In re Frazee, 30 N.W. at 76 ("Instances might also be suggested of the propriety of suspending noisy demonstrations at particular times or places, or where they would disturb public assemblies ... .It would not be wise to attempt any definition in advance of those things.").
233. See Lee, supra note 125, at 1227 ("The decisions of the Michigan, Kansas, and Illinois courts relied primarily upon municipal powers analysis.").
234. E.g., Trotter, 26 N.E. at 359 ("This suit is a prosecution by the city against John Trotter, the appellee, for a violation of said section of said ordinance. The question at issue is the validity or invalidity of the ordinance."); Anderson, 19 P. at 720.
235. The choice not to litigate in terms of a state constitutional right of assembly was not unusual for this period. See Richard T. Pfohl, Note, Hague v. CIO and the Roots of Public Forum Doctrine: Translating Limits of Powers Into Individual Rights, 28 HARV. C.R.-C.L. L. REV. 533, 543 (1993) (explaining that in nineteenth-century state court cases considering the lawfulness of "local ordinances directly regulating ... speech, [or] ... forums for speech such as parks and roads," the "issue was not whether the individual had a right to speak, but rather whether local municipalities had the legitimate power ... to regulate the conduct involved");
236. cf. Blanchard, supranote 125, at 39-40 (explaining that state court decisions engaging with and developing the contours of freedom of speech and press generally "were argued on other grounds in the state courts"). First Amendment challenges were not made because its protections did not apply against the states at the time.
237. 19 P. 720 (Kan. 1888).
238. Id.
239. Id.
240. Id. at 721 (emphasis added).
241. 30 N.W. 72 (Mich. 1886).
242. Id. at 72.
243. Id. at 73. The ordinance provided in full: No person or persons, association or organizations, shall march, parade, ride, or drive, in or upon or through the public streets of the city of Grand Rapids, with musical instruments, banners, flags, torches, flambeaux, or while singing or shouting, without having first obtained the consent of the mayor or common council of said city; funeral and military processions, however, shall not be subject to the forgoing provisions of this section; but such processions, as well as those having the permit or consent of the mayor or common council, when using the public streets of said city, shall conform to such directions as the mayor or chief or police may give in relation to the streets to be used, and the portion thereof to be occupied by them, and in relation to the manner of such use.
244. Id.
245. Id.
246. Id. at 73-74.
247. Id. at 74.
248. Id.
249. Id.
250. Id. at 75.
251. Id.
252. Id. (emphasis added).
253. Id.
254. Id. at 75-76;
255. see also id. at 76 (explaining that if unbridled discretion "were allowed in the case of processions, it would enable a mayot or council to shut off processions of those whose notions did not suit their views or tastes, in politics or religion, or any other matter on which men differ").
256. Id. at 76.
257. Trotter v. City of Chi., 33 Ill. App. 206, 208 (App. Ct. 1889), aff'd City of Chi. v. Trotter, 26 N.E 359 (Ill. 1891). Trotter had been prosecuted for violating the city's proviso '"[t]hat no parades or processions shall be allowed upon the streets of the city, nor shall any open-air meetings be held upon any ground abutting upon any street or avenue of the city, until a permit therefor shall first be obtained from the police department.'" 26 N.E. at 359. His defense was that the ordinance was invalid, and the question for the court was whether the city's charter powers "authorize and sustain the enactment under consideration." Id.
258. A similar sentiment is reflected in the following passage written by a different appellate judge in Illinois: Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one's conscience, and the right to parade in a peaceable
259. fs48 manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great latitude in public parades and demonstrations, whether religious or political, and if they do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether by legislative enactment, or municipal ordinance, is an encroachment upon fundamental and constitutional rights.
260. Rich v. City of Naperville, 42 111. App. 222, 223-24 (App. Ct. 1891). The ordinance being reviewed provided, in relevant part: It shall be unlawful for any person or persons, society or club, or association of any kind, to parade any of the streets of the city of Naperville, with any flag or flags, banners or transparencies, drums, horns or other musical instruments without first having secured the permission of the city council so to do.
261. Id. at 223 (citation omitted).
262. Trotter, 26 N.E. at 359.
263. Id.
264. Id.
265. P. 720, 721 (Kan. 1888).
266. Id. at 721.
267. Id.
268. Id. at 721-22. The use of "privilege" admittedly makes the passage a bit ambiguous, but in light of the statement that "[i]t is an abridgment of the rights of the people," and the next paragraph (quoted in the text below), it cannot be read to suggest a lack of entitlement.
269. Id. at 722. Ultimately, the court held that the ordinance "[was] not a reasonable regulation" because it "vest[ed] the power arbitrarily In the mayor to grant or refuse permission to any association of persons, combined for legal and meritorious purposes to parade the streets with music," even as "[t]he use of musical Instruments ... [is] not specially objectionable."
270. Id. at 723.
271. See, e.g., City of Wilkes-Barre v. Garabed, 11 Pa. Super. 355 (1899) (in a decision from which two judges dissented); People v. Garabed, 45 N.Y.S. 827 (Suffolk County Ct. 1897),
272. rev'd, 49 N.Y.S. 1141 (1898);
273. In re Flaherty, 38 P. 981, 983-84 (Cal. 1895).
274. But see In re Gribben, 47 P. 1074 (Okla. 1897) (holding that Oklahoma City was without power - express, implied, or essential to further the purposes of the municipal corporation - to pass an ordinance that prohibited drumming and music on the city streets or sidewalks to the extent that it annoyed or disturbed others).
275. P. at 983-84 (emphasis added).
276. Id. at 982.
277. The Trotter court, for example, complained that by conferring unbridled discretion, the ordinance "leaves it to the discretion or caprice of the superintendent of police ... to dictate that the members of one political party, or of one religious denomination, or of one civic society, may, and the members of another political party, religious denomination or civic society may not, have such parades or processions." Trotter, 26 N.E. at 360. Similarly, the Michigan Supreme Court objected that the ordinance "would enable a mayor or council to shut off processions of those whose notions did not suit their views or tastes, in politics or religion, or any other matter on which men differ." In re Frazee, 30 N.W. 72, 76 (Mich. 1886).
278. It is actually more precise to say that the state cannot prohibit all First Amendment activities in a public forum unless it can show that the ban is narrowly tailored to serve a compelling governmental interest, and that the right to assemble on the streets is an activity protected by the First Amendment. See United States v. Grace, 461 U.S. 171, 177 (1983) (explaining that in a public forum "an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest");
279. Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 45 (1983) (explaining that streets and parks are "quintessential public forums");
280. Hague v. CIO, 307 U.S. 496, 515-16 (1939) (declaring that the use of "streets and parks ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions ... has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens");
281. see also Post, supra note 43, at 1749-52 (summarizing the Court's doctrinal structure, established in Perry, which distinguishes between public, nonpublic, and limited public forums).
282. Cf. Cox v. New Hampshire, 312 U.S. 569, 576 (1941).
283. Thomas v. Chi. Park Dist., 534 U.S. 316, 323 (2002) (explaining that the licensing official must not "enjoy[] unduly broad discretion in determining whether to grant or deny a permit"). This limit was implied by the nineteenth-century state court decisions discussed.
284. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("[I]n a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication ... "' (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984))). In practice, however, where excessive discretion is not an issue, federal appellate courts are only likely to strike down a permit requirement on the ground that it is not narrowly tailored to meet the government's stated interest in maintaining order if it would apply to as few as two or three people.
285. See, e.g., Knowles v. City of Waco, 462 F.3d 430,436 (5th Cir. 2006);
286. Cox v. City of Charleston, 416 F.3d 281, 286 (4th Cir. 2005);
287. Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994) (noting its concern that the ordinance would apply to groups of six to eight). Often, the ordinances struck down have additional problems, such as unjustifiably long notice requirements. Note also that the government, in theory, may impose content-based regulations but only if it can show that the regulation is narrowly tailored to serve a compelling governmental interest. Boos v. Barry, 485 U.S. 312 (1988) (striking down the District of Columbia's complete ban on displays within 500 feet of embassies if they tended to bring a foreign government into "public disrepute," because it was not narrowly tailored to address the alleged governmental interest).
288. This is true even if the intermediate scrutiny test is applied in an exacting way. Cf. Cox, 312 U.S. at 576.
289. City of Chariton v. Fitzsimmons, 54 N.W. 146 (Iowa 1893), is not to the contrary. It upheld a municipal ordinance that outlined circumstances under which congregations, parades, and the making of noise on city streets and sidewalks would be prohibited and under which the mayor and city marshal would have the duty to order persons involved to disperse. Id. at 147. Moreover, the court emphasized that since the ordinance was enacted pursuant to the municipalities power to disperse riots and unlawful assemblages, it covered only those parades and crowds that "cause[ ] a public annoyance."
290. Id. In the end, what the court primarily rejected was the defendants' claim that the ordinance was unreasonable because "the offense is made to depend upon the whim or caprice of the mayor or city marshal."
291. Id. In its view, the defendants were protected from arbitrary power because the city had to prove the gravamen of the charge - that is, that the crowd had caused an unreasonable disturbance or public annoyance. Id.
292. N.E. 577 (Mass. 1886).
293. Id. at 577.
294. Id. at 578.
295. Defendant's Brief at 1-9, Commonwealth v. Davis, 4 N.E. 577 (Mass. 1886) (No. 6-37), reprinted in WM. F. DAVIS, CHRISTIAN LIBERTIES IN BOSTON, app. at 19-58 (Chelsea, Mass., Wm. F. Davis 1887).
296. Id. at 32-41, 58.
297. Id. at 49-50.
298. N.E. at 578 (quotation omitted).
299. Id. (emphasis added).
300. Commonwealth v. Abrahams, 156 Mass. 57, 58 (1892) (background published by Massachusetts Reporter).
301. Id.
302. Id.
303. See id.
304. See id.
305. Id. at 59.
306. Commonwealth v. Abrahams, 30 N.E. 79, 79 (Mass. 1892).
307. N.E. 113 (Mass. 1895).
308. Wertheimer, supra note 83, at 170-71.
309. The ordinance now provided: "[N]o person shall, in or upon any of the public grounds, make any public address, discharge any cannon or firearm, expose for sale any goods, wares or merchandise, erect or maintain any booth, stand, tent or apparatus for the purposes of public amusement or show, except in accordance with a permit from the mayor." Brief of Defendant in Error at 3-4, Davis v. Massachusetts, 167 U.S. 43 (1897) (No. 229) (internal quotation omitted) (reproducing the ordinance and summarizing the procedural history).
310. Davis II, 39 N.E. at 113 (citation omitted).
311. Id. An earlier incarnation of the ordinance had specified '"no person shall deliver a sermon, lecture, address, or discourse,'" and Davis argued that the revision to exclude the term "sermon" was significant. The court disagreed finding "the omission of the superfluous words in the last revision was only a matter of style and the abridgement properly sought for in codification."
312. Id.
313. Id. The court also summarily rejected Davis' contention that the ordinance was unconstitutionally "directed ... against free preaching of the gospel in public places" for lack of evidence.
314. Id.
315. See id. (citing McAuliffe v. New Bedford, 29 N.E 517 (Mass. 1892) (involving the dismissal of a police officer for cause on grounds of political activity)).
316. Id. This passage is often interpreted to mean that since the Boston Common was the property of the city of Boston, it could forbid or regulate speech on it just as the owner of a private house may forbid speech in his house. Interestingly, however, the case on which the court relied regarding the power of the city over the Common actually questioned the nature of Boston's ownership of the Common, at the same time that it recognized the city's power to regulate the use of Common by the public. See Lincoln v. City of Boston, 20 N.E. 329, 330 (Mass. 1889) ("The city is alleged to own the common. But it appears by statutes and decisions, of which we are bound to take notice, that its rights, even at common law, hardly extend beyond a technical title, without the usual incidents of title ... ").
317. See Davis v. Massachusetts (Davis III), 167 U.S. 43 (1897).
318. Id. at 46.
319. Id.
320. Id.
321. Id.
322. Id. at 47 (quoting Davis II, 39 N.E. at 113).
323. Id. at 48.
324. See Gitlow v. New York, 268 U.S. 652, 666 (1925).
325. U.S. 496 (1939).
326. Id. at 515-16.
327. Id. at 516. Mayor Hague was blatant about his contempt for the unionizing activities of the CIO. See Hague v. CIO, 101 F.2d 774, 779 (3d Cir. 1939). For a detailed account of Mayor Hague's civil rights record generally, as well as in relation to the CIO,
328. see Abraham J. Isserman, CIO v. Hague: The Battle of Jersey City, 36 GUILD PRAC. 14 (1979).
329. U.S. 569 (1941).
330. Id. at 576. The case arose out of an "information march" undertaken by approximately eighty-eight Jehovah's Witnesses.
331. Id. at 572. The eighty-eight were divided into groups of fifteen to twenty, each of which marched single file through neighborhoods carrying placards. Id. '"The marchers'" were found to have '"interfered with the normal sidewalk travel, but no technical breach of the peace occurred."'
332. Id. at 573 (quoting the state court's recital of the facts in State v. Cox, 16 A.2d 508, 511 (N.H. 1940)). Sixty-eight of them were charged and convicted for violating a state statute that prohibited parading upon the public streets without a special permit. Id. at 570-71. Five appealed their convictions arguing that the statute deprived them, among other things, of their rights of freedom of assembly.
333. Id. at 571. No permit had been requested, and there was no record evidence of official discrimination.
334. Id. at 573, 577. The New Hampshire Supreme Court upheld the convictions in relation to both the state and federal constitution. State v. Cox, 16 A.2d at 517. In doing so, it held that the statute had incorporated the standards set forth in Hague v. CIO, namely, "that the licensing authority act reasonably in granting or denying licenses and with reference to the object of public order on the public ways."
335. Id. at 513. Thus, it was valid under the federal constitution because, as interpreted, it "leavels] no play or room for the exercise of a too wide discretion."
336. Id. at 516.
337. Cox, 312 U.S. at 576.
338. Id. at 577.
339. Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953).
340. See Post, supra note 43, at 1721 (explaining that Hague v. CIO is considered the origin of the public forum doctrine, an exception to the general principle that the government is entitled to regulate speech on its own property). The term "public forum" is actually from an article by Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1. The case has been interpreted to imply that the public has "a kind of First-Amendment easement," when it comes to public streets and parks and that this easement is a limit on the type of regulation that is constitutionally permissible.
341. Id. at 13.
342. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
343. Hague v. CIO, 307 U.S. at 515-16.
344. For a persuasive argument that the Supreme Court's decision in Davis III emerged as the backdrop against which all cases involving the permissibility of prohibiting or abridging speech and assembly on government property are considered see Post, supra note 43, at 1722-47 (discussing Davis III's influence on the development of the Court's doctrine concerning government regulation of speech on its property).
345. Cf. Randy Furst, Protesters Dispute St. Paul Police in Court; General Threats of Possible Violence Not Linked to an Antiwar March Can't Be Used to Deny the Preferred Route, Court Filings Say, MINNEAPOLIS STAR "HUB., June 28, 2008, at 1B (noting that authorities were relying on web postings advocating civil disobedience to justify changes made to a requested permit even as they acknowledged that the websites were not affiliated with the coalition requesting the permit to march).
346. See Coalition to March on the RNC & Stop the War v. City of St. Paul, 557 F. Supp. 2d 1014, 1021 (D. Minn. 2008) (noting that the district court was unaware of any march during the Republican and Democratic national conventions in 2000 and 2004 "that passed within sight and sound of the conventions' sites");
347. see also Martha T. Moore, Convention Cities Brace for Political Protests; Dispute Over St. Paul Route in Court Today, U.S.A. TODAY, July 9, 2008, at 4A (quoting St. Paul's city attorney as saying, "This (route) takes you within the shadow of the Xcel Center. That's really not happened before").
348. See ACLU of Colo. v. City & County of Denver, 569 F. Supp. 2d 1142,1156 (D. Colo. 2008);
349. see also Felisa Cardona, Protester-Access Suit Widened, The ACLU Calls Limits on Parade Proximity and Leafleting Too Strict, DENVER POST, July 1, 2008, at B-01 ("Denver and federal officials won't allow groups that plan to demonstrate during the Democratic National Convention to conduct nearby parades at the same time delegates are entering the Pepsi Center and won't let them close enough to hand leaflets to delegates from the fenced protest zone."). This aspect of the city's regulations was not challenged in court.
350. See Coalition to March on the RNC & Stop the War, 557 F. Supp. 2d at 1018 (upholding the changes as a valid restriction on the time, place, and manner of speech);
351. see also Tom Pope, Demonstration Permits Frustrate Groups: Political Parties Keeping Advocates Far Away From Conventions, NONPROFIT TIMES, Aug. 1, 2008, at 1 (explaining that the city's permit for an antiwar march was intended to ensure that the march ended prior to the delegates' arrival);
352. John C. Ensslin, Protest Parade Route Not Yet Set; If St. Paul Is Any Gauge, City likely to Face Challenge, ROCKY MOUNTAIN NEWS, May 16, 2008, at 6 (noting that "the time frame set by police for the march ensures that the Republican Party has the entire evening's spotlight to itself).
353. United for Peace & Justice v. City of N.Y., 243 F. Supp. 2d 19, 30-31 (S.D.N.Y.), aff'd, 323 F.3d 175 (2nd Cir. 2003).
354. Id. at 27 (citation omitted).
355. Perhaps in recognition of this, the Second Circuit, when it affirmed, "caution[ed] that, while short notice, lack of detail, administrative convenience and costs are always relevant considerations in the fact-specific inquiry required in all cases of this sort, these factors are not talismanic justifications for the denial of parade permits." United for Peace & Justice, 323 F.3d at 178 (holding that the District Court had not abused its discretion in denying preliminary injunctive relief).
356. Higginson, supra note 71, at 155-56.
357. Anderson v. City of Wellington, 19 P. 719, 722 (Kan. 1888).