Freedom of Assembly

B

Interpretation of the Right

Like other freedoms, the right to assemble is not absolute. It can be constrained by restrictions on the time, place, and manner of assembly. Thus, it is legitimate for city officials to require parade organizers to obtain a permit, whether the parade is to protest a public policy or to celebrate a holiday. The Supreme Court of the United States has upheld laws requiring general permits, as well as prosecutions for illegal demonstrations on courthouse grounds or on school grounds while classes are in session.

Furthermore, the Supreme Court has ruled that freedom of assembly need not be given the same degree of protection as other forms of expression guaranteed in the First Amendment, such as freedom of speech. Although assembly typically involves speech, it also includes conduct—such as gathering in a park or marching down a street. Consequently, officials must balance the right of individuals to express themselves against the need to maintain public order. By ruling that assembly does not qualify as “pure speech”—a category reserved for expressions that require the greatest degree of constitutional protection—the Court has provided officials with greater latitude in regulating public demonstrations.

However, the Court has also made clear that regulation of public assembly must be “content neutral” and must not be used to stifle dissent. Thus, officials may not prevent unpopular groups from gathering based on the nature of the group’s message. For example, in Hague v. C.I.O. (1939), the Court upheld an injunction preventing city officials from interfering with public meetings and distribution of literature by labor organizers. A lower court had granted the injunction after it determined that city officials had arbitrarily denied labor organizers permits for such activities.

Just as government officials may not grant permits to people they favor and deny them for those they do not, officials may not enact restrictions (even if they are content neutral) that make it impossible for most groups to exercise their right to public assembly. In a classic example of this principle, in 1978 a federal appeals court ruled invalid a local ordinance in Skokie, Illinois. The ordinance, enacted in anticipation of a planned march by members of the American Nazi Party, required a prohibitively high cash bond (pledge of money) from any group who wished to march in the city’s streets. The court found that the ordinance inappropriately stifled freedom of assembly by regulating public marches in such a way that it was impossible for any organization to hold any type of demonstration in the city.

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IV

Freedom of Assembly in Canada

Canada has a modified system of parliamentary sovereignty. In general the Canadian Parliament has the authority to make and change laws and judicial review has been limited. (Judicial review refers to the process in which courts review laws to determine whether the laws conform to specific rules set forth in a supreme law, sometimes referred to as a constitution.) The Constitution Act of 1867 addressed distribution of authority among the federal, provincial, and territorial governments. But the Constitution of Canada put into force by this act did not contain a bill of rights enumerating and guaranteeing individual freedoms. In 1960 parliament adopted the Canadian Bill of Rights, expressly guaranteeing the right of peaceful assembly. However, the Canadian Parliament retained full authority to amend or override the Bill of Rights and therefore it did not function as a fundamental constitutional guarantee.

In 1982 Canada adopted the Charter of Rights and Freedoms, which functions similarly to the Bill of Rights in the United States. Section 2 of the charter provides that everyone has certain “fundamental freedoms”—including freedom of peaceful assembly and association. As in the United States (where court decisions have determined how the First Amendment is interpreted), the right of assembly in Canada is not absolute. Instead, it reflects a balance between individual expression and community values of public order. The Canadian Charter of Rights and Freedoms explicitly provides that the rights set forth in it are guaranteed to limits that can be “demonstrably justified in a free and democratic society.”

Unlike the Bill of Rights of 1960, the Charter of Rights and Freedoms takes precedence over legislation enacted by Parliament. (Parliament retains limited power to pass laws that may violate the charter under the “section 33 override” process.) Courts may declare laws that conflict with the charter (other than section 33 laws) to be invalid. However, Canadian courts have not extensively addressed the issue of freedom of assembly under the charter. In a 1982 decision the Supreme Court of Canada ruled that picketing by striking workers was a permissible exercise of the right of free assembly. However, the Court later determined that public workers in Canada do not have a constitutionally guaranteed right to strike under the freedom of association protection in the charter. Thus, laws requiring strikers to go back to work or lose their jobs are not unconstitutional.

V

In Other Countries

Mass demonstrations occur in most democracies and governments view these gatherings as a way for groups to express their support or displeasure for public policy. While sometimes violent, demonstrations in such countries as Britain, Germany, France, Israel, and Japan form an accepted part of the political culture. Sometimes mass demonstrations do not target governmental policy but simply express the sentiments of the people. For example, in the late 1990s in Germany hundreds of thousands of citizens marched to protest the rise of racism and anti-Semitism in that country.

In contrast, most totalitarian governments orchestrate public gatherings to demonstrate enthusiasm for the regime. For example, in the late 1930s German dictator Adolf Hitler organized huge rallies and torchlight parades in numerous German cities to generate support for his policies. Other demagogues, including Italian dictator Benito Mussolini and Chinese leader Mao Zedong, have similarly utilized the power of mass gatherings.

Conversely, totalitarian governments have almost universally prohibited mass demonstrations that oppose official policies. Leaders of nondemocratic countries remain in power through a combination of force and the public’s acceptance of the status quo. Demonstrations in totalitarian countries that are not orchestrated by the government tend to undermine the authority of the leadership. Consequently, such gatherings are often suppressed. For example, in 1989 the Chinese government used soldiers and tanks to disperse pro-democracy demonstrators in Beijing during the Tiananmen Square Protest.

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