Freedom of assembly and freedom of petition — two of the six major freedoms in the First Amendment — have not received the attention they are due in most Media Law and Ethics classes.
However, US history is filled with freedom of assembly and petition controversies, including the labor movement, the Civil Rights movement, and women’s rights movements. These movements fought for legitimacy against state and federal government fears of losing the ability to maintain order. Limits on freedom of assembly were challenged by cases like De Jonge v. Oregon (1937) which expanded state protections; debates over hate speech, such as the 1977 Skokie, Ill. march; and widespread civil rights and campus protests dating from the 1950s.
The Minnesota protests of 2026 — First Amendment Freedom of Assembly claims surfaced in a lawsuit by Minnesota and the Twin Cities of Minneapolis and St. Paul against U.S. Department of Homeland Security. The suit, which comes after the fatal shooting of Renee Good by an Immigration and Customs Enforcement officer in Minneapolis, argues several violations of law, including the First Amendment. Freedom Forum’s Scott A. Leadingham explains the cities’ lawsuit in this analysis.
- The suit says that the federal government has:
Retaliated against Minnesota state and Twin City officials based on their First Amendment-protected political speech in a way that also impacted residents’ ability to exercise their right to assemble - Engaged in viewpoint discrimination by targeting the state and the Twin Cities — but not other jurisdictions — with increased immigration enforcement based on those state and city officials’ political views
Early History & State Limitations
- Colonial Roots: The rights of assembly and petition grew from English dissenters, influencing early American declarations to protect assembly for “common good”.
- Federal vs. State: Before “incorporation,” the First Amendment only applied to the federal government and states often suppressed assemblies that they saw as having a “bad tendency.”
- De Jonge v. Oregon (1937): The Supreme Court incorporated First Amendment protections to states, reversing a conviction for organizing a communist meeting, strengthening the right to assemble peaceably.
20th Century & Civil Rights Era
- Labor: Governments routinely used public safety laws to prosecute gatherings of labor unions, socialists, and others.
- Civil Rights Movement: Assembly was central to Civil Rights protests, facing significant backlash, but court cases (like those involving marchers) helped solidify protections.
- Free speech movement: (1964-65) One of the first campus-wide protests in the US, the movement was sparked by attempts to quell dissent
- Tinker v. Des Moines (1969): Protected student silent protests (armbands) against the Vietnam War, affirming student expression rights unless disruptive.
Modern Controversies (Late 20th Century – Present)
- Skokie March (1977): The Supreme Court upheld neo-Nazi groups’ right to march in a predominantly Jewish community, emphasizing broad protection for even hateful speech to avoid censorship.
- Forsyth County v. Nationalist Movement (1992): Struck down fees that allowed officials discretion to charge more for “controversial” marches, curbing unbridled power.
“Forgotten Freedom”: Some scholars argue assembly has become a “footnote,” subsumed by speech/association, but it remains vital for expressing dissent and challenging the status quo.
Contemporary Issues: Debates continue over protests on college campuses, government responses to activism, and defining the limits of peaceful assembly amidst other rights.
Much of the enduring controversy lies in balancing the fundamental right to assemble for political expression and protest against the government’s responsibility to ensure public safety.