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JULY 1994

Article 21 - Freedom of Assembly

The First Amendment to the U.S. Constitution 
proscribes the making of any law abridging "the 
right of people peaceably to assemble."  This right 
has been interpreted quite broadly.  Thus, for 
example, it was held nearly fifty years ago that 
participation in a Communist Party political meeting 
could not be made criminal unless violence is 
advocated.  DeJonge v. Oregon, 299 U.S. 353 (1937).  
The assembly for marches, demonstrations, and 
picketing is also protected, see Hague v. CIO, 307 
U.S. 496 (1939), as is the right to conduct labor 
organization meetings, Thomas v. Collins, 323 U.S. 
516 (1945).

Because the freedom of speech under the U.S. 
Constitution entails the freedom to engage in 
symbolic speech and expressive conduct, cases 
involving the right to assemble are frequently 
resolved by applying free speech analysis.  The 
right to assemble is thus subject to reasonable 
time, place, and manner restrictions when exercised 
in a traditional or government-created public forum, 
and may be subject to reasonable, noncontent based 
restrictions in other fora.  The Court has defined 
three different categories of public property or 
types of "public" fora.  First is the fully public 
forum, which includes streets, parks, and other 
places traditionally used for public assembly and 
debate.  In these areas, the government may not 
prohibit all communicative activity and must justify 
any content-neutral, time, place, and manner 
restrictions as narrowly tailored to serve a 
legitimate state interest.  The second category is 
the "limited public forum" where the government has 
opened property for communicative activity and 
thereby created a public forum.  In this category, 
the government may limit the forum to use by certain 
groups; Wider v. Vincent, 454 U.S. 263 (1981) 
(student groups), or for discussion of certain 
subjects, City of Madison Joint School District v. 
Wisconsin Employment Relations Commission, 429 U.S. 
167 (1976) (school board business).  The last forum 
category is where the government "reserve(s) a forum 
for its intended purposes . . .  as long as the 
regulation or speed is reasonable and not an effort 
to suppress, express or merely because public 
officials oppose the speaker's views."  Perry Educ. 
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 
46 (1983).  Government regulation of the second 
category requires a "compelling" state interest 
while regulation of the third category need only be 

Where a public forum has multiple, competing uses, 
the U.S. Supreme Court has upheld a regulation 
limiting the time when a public park can be used, 
even when that limitation restricted the ability to 
demonstrate against homelessness by sleeping in 
symbolic "tent cities" in the park.  See Clark v. 
Community for Creative Non-Violence, 468 U.S. 288 
(1984).  Similarly, governments may impose permit 
requirements on those wishing to hold a march, 
parade, or rally.  See Forsyth County v. Nationalist 
Movement, 112 S.Ct. 2395, 2401 (1992).  The power to 
regulate is at its greatest when more limited fora, 
such as military bases or airports, are at issue.  
See, e.g., International Society of Krishna 
Consciousness v. Lee, 112 S.Ct. 2701 (1992).

However, there are important constitutional limits 
to such intrusions.  A law limiting certain types of 
picketing or demonstration but not others, for 
example, would be an impermissible content-based 
restriction.  E.g., Police Department of Chicago v. 
Mosley, 408 U.S. 92 (1972).  Moreover, licensing or 
permit systems may not delegate overly broad 
licensing discretion to government officials, must 
be narrowly tailored to serve a significant 
government interest, and must leave open ample 
alternatives for communication.  In Forsyth County 
v. Nationalist Movement, for example, the U.S. 
Supreme Court struck down as unconstitutional a law 
which empowered a county administrator to adjust a 
permit fee for demonstrators based on the likely 
expense of maintaining public order.  Reviewing a 
challenge brought by a controversial group that was 
expected to cause considerable disruption, the Court 
held that such a rule was unconstitutional both 
because it vested too much discretion in the 
administrator and because it was based inevitably on 
content:  to estimate the cost of providing 
security, the administrator would have to examine 
the content of the parade's message, the likely 
public reaction, and judge the number of police 
necessary to provide protection.  Similarly, in 
Shuttleworth v. City of Birmingham, 394 U.S. 147 
(1969), a city ordinance permitting denial of a 
parade permit where required by "the public welfare, 
peace, safety, health, decency, good order, morals 
or convenience" was held to be unconstitutional on 
its face because of the discretion it vested in the 
city administrator.

The ability of governments to limit assembly depends 
considerably on the primary activity of the locales 
in question, in tandem with the type of regulation.  
For example, the government may prohibit the 
distribution of leaflets inside a courthouse, but 
not outside the courthouse, where it is limited to 
reasonable time, place, or manner restrictions, as 
the area around a courthouse is traditionally 
considered a public forum appropriate for public 
demonstration or protest.  See United States v. 
Grace, 461 U.S. 171 (1983).  However, demonstrations 
or assemblies near a jail may be entirely 
prohibited, Adderly v. Florida, 385 U.S. 39 (1966), 
and the government may prohibit demonstrations 
within a defined proximity to a courthouse when the 
purpose of the demonstration is to influence 
judicial proceedings.  Cox v. Louisiana, 379 U.S. 
559 (1965).

American courts will closely scrutinize the intent 
of government regulation of the right of assembly 
and require that intrusive regulations be narrowly 
tailored.  Thus, in Boos v. Barry, 485 U.S. 312 
(1988), the U.S. Supreme Court struck down a statute 
prohibiting the display of any sign within 500 feet 
of a foreign embassy if the sign tended to bring the 
embassy's government into disrepute.  The Court held 
that the law was a content-based restriction on 
political speech that was not narrowly tailored to 
prevent actual intimidation or harassment of foreign 
diplomats.  However, the Court upheld a second 
portion of the law prohibiting three or more persons 
from congregating within 500 feet  of the embassy if 
the group refused to disperse after being requested 
by the police.  The Court narrowly interpreted the 
statute to permit ordering dispersal only when such 
congregations were reasonably believed to threaten 
the security or peace of the embassy.
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