In the United States, understanding this issue requires an examination of the Bill of Rights as well as a larger historical context. The right of the people, peaceably to assemble in order to consult for the common good is a constitutional right protected by the First Amendment of the Bill of Rights to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [emphasis added]

Tracing this back, this right was also included in 1774 in the Declaration and Resolves of the First Continental Congress:

The inhabitants of the English colonies in North-America, by the immutable laws of nature, the principals of the English constitution, and the several charters or compacts, have the following rights: They have a right peaceably to assemble, consider their grievances, and petition the king: and that all prosecutions, prohibitory proclamations, and commitments for the same are illegal. (NCD 8 ) [emphasis added]

Going further back in history, the right to peaceable assembly is found in chapter 61 of the Magna Carta, written in 1215. And this history continues all the way back to the Athenians in ancient Greece, where the concept of gathering in public space and the role of a useful citizen centered on discussion and decision making for the sake of the public good. The strength of this conviction is conveyed in this famously classic statement about democracy made by the Athenian leader Pericles as part of a public funeral oration after a battle.

“Our public men have, besides politics, their private affairs to attend to, and our ordinary citizens, though occupied with the pursuits of industry, are still fair judges of public matters; for, unlike any other nation, regarding him who takes no part in these duties not as un-ambitious but as useless [emphasis added], we Athenians are able to judge at all events if we cannot originate, and, instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all.” From the History of the Pelopennesian War (Book 2.34-46) by Thucydides.

This history conveys a longstanding relation among public assembly, political life and the city. It is reflected in the first amendment, which framed the right of assembly in relation to the right to petition the government. Additionally, public assembly was a significant part of 19th century American life in the form of public meetings and spontaneous parades. But the interpretation of the first amendment changed beginning in the end of the 19th century in several ways. (see below for links to The Neglected Right of Assembly by Tabitha Abu El-Haj for an extensive historical and legal analysis published in the 2009 UCLA Law Review).

The most important change occurred when the States’ high courts, beginning with the Massachusetts state Supreme Court, began affirming cities’ ordinances requiring permits and fees for public assembly. This abridgment of peaceable assembly marks a significant change from the culture in the 18th and 19th century, where citizens actively used streets, squares and parks for spontaneous parades, festivities and gatherings that were both political and social. These events took place as part of elections and holidays and launched “the politics of the street into the mainstream of American politics.” (Simon Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic, 1997, p. 192)

The ability to hold these events spontaneously and in public, without restriction except that they not disturb the peace, was central to their legal, political and social value. While some events were related to elections and holidays, others were assemblies as part of a variety of political viewpoints that sought to be heard. The absence of permit requirements empowered a diversity of gatherings that allowed people to fluidly shift from an assembly to a march or parade. This gave tremendous voice and agency to non-elected individuals to communicate their beliefs to society and congress, serving as an important component of the system of checks and balances that is the hallmark of representative democracy in the United States. Thus, “[a] decision to strike, a meeting’s outcome, or a festive gathering could move quickly from an assembly into a marching line that conveyed a message to coworkers, neighbors, and the city at large.” (Susan G. Davies, Parades and Power, Street Theater in Nineteenth-Century Philadelphia, 1986, p. 33) . Reaching back into the forgotten beginning of peaceable assembly and what it meant, consider the voice of this gathering in Petersburg, Virginia:

“A 1786 gathering of citizens in Petersburg noted that ‘it is the indisputable right of Freemen to assemble at any time in a peaceable and orderly manner to discuss their public grievances, and if necessity shall require, to petition or remonstrate to their Rulers thereon.’” (Raymond C. Bailey, Popular Influence Upon Public Policy: Petitioning In Eighteenth-Century Virginia, p 23, 1979).

The question of safety and disturbing the peace during this time was handled by criminal law rather than civil law. Thus, an assembly had to have the likelihood of becoming a riot or it would have to actually become disorderly for it to be dispersed. The implementation of permits to control events is strident because it meant all assemblies were controlled before anything ever happened and even without indication that something might happen, rather than controlling only those assemblies that were proven to be disorderly.

On March 3, 1913, over 5,000 [women] suffragists paraded in Washington, D.C…. As the suffragists started down Pennsylvania Avenue, the crowd became abusive and started to close in, knocking the marchers around with hostility. With local police doing little to keep control, the cavalry was called in as 100 women were hospitalized. Many suffragists concluded that public protests might be the quickest route to universal franchise. (Wikipedia)

Head of March 3, 1913 suffrage parade, Washington, D.C.. Women suffragists marching on Pennsylvania Avenue; Capitol in background. George Grantham Bain Collection

On March 3, 1913, the day before Woodrow Wilson's inauguration, thousands of women paraded down Pennsylvania Avenue in Washington, D.C., demanding their right to vote. Underwood & Underwood/Library of Congress. (quoted from Smithsonian.com)

As a result of these public, collective gatherings, the 19th amendment to the U.S. Constitution was passed: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.”

Another important change shifted the relation between assembly and the right of petition, which was of greater importance than the right of assembly until 1937 when in De Jonge v. Oregon the Supreme Court said, the right of assembly is:

[C]ognate to those of free speech and free press and is equally fundamental…. [It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions— principles which the Fourteenth Amendment embodies in the general terms of its due process clause…. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question . . . is not as to the auspices under which the meeting is held but as to its purposes; not as to the relation of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. (De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also Herndon v. Lowry, 301 U.S. 242 (1937).) (excerpted from Supreme Justia’s website on the right of assembly.)

Finally, and of extreme importance, the right of assembly in the early-mid 20th century began to be folded into free speech and the public forum doctrine (the public forum doctrine developed out of a series of Supreme Court rulings and became the standard for governing assembly and free speech). Although it has not been argued to the court, this change is critical and contentious because there is a fundamental difference between these two protections that has been forgotten: free speech is about individual expression while assembly and the right to petition are about collective discussion and action. The right to assemble and petition the government by citizens who are not elected officials was the standard of democracy in the United States in the 19th century; in terms of the United States, it served as an important, check and balance on representative democracy that citizens could directly enact. It also resulted in parades, festivities and public meetings on streets and in parks, which were a significant element of the culture of the United States at the time.

Today, the evolution of law and public space has created a surprising context for peaceable or public assembly in relation to the availability of public space. Pedestrian accessible traffic islands in U.S. cities are the only place you can freely gather at any time without a fee or permit, as long as you adhere to certain guidelines. In discussions with Munger, Tolles and Olson (MTO), which provided Islands of LA with pro-bono legal advice on the use of traffic islands as public space instrumental to Island Law and the guidelines, the question arose as to whether even a benign community gathering such as a picnic in public space could be construed as a type of participation in political life particularly if it was in reference to the use of a space in relation to the public forum doctrine and the right of assembly. It is unknown how the high court would rule on this perspective but, with this in mind, Islands of LA has explored the use of traffic islands for activities such as an evening picnic discussion and stroll or a sound game that intertwine a discussion of these spaces for assembly with social interaction and small festivities.

Islands of LA will continue to research this complex legal and cultural history and revise this essay accordingly. Below is a short list of articles and related content about the right to peaceable assembly. For a listing of case rulings related to peaceable assembly, visit Islands Law.

• The Neglected Right of Assembly by Tabitha Abu El-Haj.  Two version: two page summary and the full 47 page essay published in 2009 the UCLA Law Review (pdf) This article considers changes in both our understanding of the constitutional right of peaceable assembly and our regulatory practices with respect to public assemblies. It shows that through the late nineteenth century the state could only interfere with gatherings that actually disturbed the public peace, whereas today the state typically regulates all public assemblies, including those that are both peaceful and not inconvenient, before they occur, through permit requirements. Through this regulatory shift, and judicial approval of it, the substance of the right of peaceable assembly was narrowed. The history recounted in this Article is significant because it provides insight into the democratic and social practices the right was intended to protect-insight that cautions against collapsing the collective right of assembly into the individual right of free expression. ABSTRACT FROM AUTHOR.
• Right to Assemble by Lisa Bancuk provides an overview of the right to assemble and relates it to the philanthropy sector
• A Legal Analysis on the Rights of Assembly and Petition from FindLaw

A partial list from Wikipedia of Human Rights instruments where the concept of the right to peaceably assemble is protected includes:

• European Convention on Human Rights – Article 11
• International Covenant on Civil and Political Rights – Article 21
• India- Fundamental Rights in India
• Republic of Ireland – Guaranteed by Article 40.6.1 of the Constitution of Ireland
• Turkey
• Germany – Art. 8 GG
• Canada – S. 2 of the Canadian Charter of Rights and Freedoms which forms part of the Constitution Act, 1982
• France – article 431-1 of the Nouveau Code Pénal
• Hong Kong Basic Law Section 27

1. View traffic islands as available space (constructive, non-confrontational usage): this approach or methodology for Islands of LA began from its inception and is at its genetic or conceptual core. Prior to beginning the project, an essay by Margaret Crawford called Contesting the Public Realm was found online.  The article is a feminist critique is a response to the “architectural ‘narrative of loss of public’ space lamenting the loss of public space, [and] argues that urban residents are constantly redefining the public sphere through their lived experience.”

Only the first page was available but the core idea was impressionable. It cast a new perspective on the dominant idea that we are loosing our public spaces to private interests (including shopping malls and large scale private sports stadiums), and presented an alternative view by considering the past and how those normally excluded used and constituted public space.For example, the public spaces we long for in the past were highly restrictive. Women and minorities couldn’t participate. Instead, they went elsewhere to fields or kitchens to gather and interact.

From this perspective, she asked, who creates the city? Is it planners, architects, city officials, etc or the everyday people who use the space. She looked at the city landscape from this perspective and found public spaces field with numerous examples of public life such as “outlaw entrepreneurs.”

Islands of LA interpreted this to establish an approach to the use of traffic island as available options and to engage in the use in a constructive and functional, non-confrontational manner. In the face of what seems overwhelming circumstances, the suggestion is to find an approach to the city and the use and availability of public space that emphasizes use, the absence of permission or fees and is non-confrontational.  Islands of LA took this to heart and decide to view and approach traffic islands as available public space.

This approach impacted and continues to be at the core of Islands of LAs usage and investigation of traffic islands. It informed a belief in temporary and ethical, non-damaging use of these spaces. For example, signs where installed in a manner that created no temporary or permanent damage to public property and right-of-way was never disturbed. Additionally, there was an examination of what these spaces are and who uses them rather than an attempt to usurp or colonize them.

The question of searching for available space in a non-confrontational manner, particularly in relation to democracy, raises important issues that political theorists have begun to grapple with. Society and, in particular democracy, are marked by psychology, conflict and emotion. Islands of LA has begun to investigate theories of agonistic democracy that attempt to integrate and account for psychology and conflict in a constructive manner. Agonism is “a political theory which emphasizes the potentially positive aspects of certain (but not all) forms of political conflict. It accepts a permanent place for such conflict, but seeks to show how we might accept and channel this positively. For this reason, agonists are especially concerned to intervene in debates about democracy. The tradition is also referred to as agonism. ” (see Wikipedia on Agonism) Moreover, consider the essay, Deliberative or Agonistic Democracy by Chantale Mouffe, which attempts to consider the “crucial role played by ‘passions’ and collective forms of identifications in the field of politics….[and that] democratic theory needs to acknowledge the ineradicability of antagonism and the impossibility of achieving a fully inclusive rational consensus.”

2. Gathering in public without a fee for discussion and cultural interchange or community interaction: a second core value is the desire to gather in publicly owned public space without a fee to interact with other people and foster discussion and community, face-to-face interaction. Thus, traffic islands were seen as places to gather, however absurd this initially appeared.

3. Legal or lawful use of traffic islands: this value grow out of experiences in the first year of the project when the law firm Munger, Tolles and Olson agreed to provide Islands of LA with pro-bono constitutional advice about the use of traffic islands as public space for gathering. In the course of this relationship, MTO conclude that traffic islands are most likely traditional public fora protected under the First Amendment of the U.S. and California constitutions. Given this unique and highly important legal analysis, which dovetailed with it’s already established core values, Islands of LA focused on the legal use of traffic islands as public space for gathering including nuanced interpretations of the law to foster dialog abut questions of public space and support the identification and use of traffic islands as public space for gathering. This helped established Island Law, which has been tested in encounters with law enforcement that affirmed the safe and legal use of traffic islands for gathering including this dinner event. Recently, Islands of LA has begun a deeper investigation into the constitutional issue of peaceable assembly.

These are the primary core values or princples of Islands of LA. There are also various secondary principles which include the following:

• Communities are fragmented and dynamic: rather than singular or static. The ethical use of space is not based on who owns the space or whether someone is an “insider” or “outsider” but on how they interact with the space and its surrounding landscape, people and history. This perspective came from Miwon Kwon’s One Place After Another

• Integrated or transdisciplinary: analysis of these spaces based on the topic rather than a particular discipline. Thus, the project has been informed and integrates a variety of perspectives such as law, urbanism, political theory, cultural theory, psychology and art.

• Archiving and mapping: the collection and documentation of the use of traffic islands supports a complex understanding of the space and informs how these spaces can be understood and utilized. This is enabled through the website and the functional map that provides information and direction to locations for anybody’s use. The archiving also has the important value of conveying the history of these spaces, which supports the Island Law and the legal analysis by MTO that, while it is an open question of the law, traffic islands are most likely Tradtional Public Fora.

Yet, the question of public space in the past for gathering and speech is more complex. The tradition of exclusion, for example, functioned to deprive certain people of the freedom to participate in activities that weren’t necessities to life, specifically, politics and art. Historically, freedom was not a question of economics, it was about the ability to participate in politics and art, those things that were not the necessities of life. Additionally, freedom was something that happened in public space not in private space. Today, both have flipped. When people think of freedom, many people think of economic freedom and of freedom in private space; this is particularly true in the United States. Related to the question of exclusion is the idea of who and what creates public space? Is it only by government decree as a result of urban planning, city meetings, discussions among architects or is it also created by everyday people? What is the relation between the media, the Internet, the public sphere and physical public space? And, is physical public space purely a material question of space or is it created by what happens there, raising the idea of public time?

In the United States, when we look for physical places where anybody can legally, safely gather at any time without an additional fee or permit, we think of our home, of private space (which is problematic if you consider rent and property tax plus it excludes those without a home). But if we look at what is right in front of us, we find the island: a publicly owned, public place we can visit for ephemeral activities at any time; the last remaining, publicly owned public spaces that is most likely protected under the First Amendment of the Bill of Rights for people to gather at any time without a fee or permit. This is Island Law in the United States. But the story of traffic islands as a site where questions about publicness intersect is global. In cities all over the world, traffic islands are public space imbued with surprising legal and/or urban stories – sites, hidden in plain view by the everyday happening – that you can visit and use.

To continue with this story, consider the legal complexity of peaceable assembly.

More specifically, Lewis, Martin W.; Kären E. Wigen (1997) in The Myth of Continents: a Critique of Metageography. Berkeley: University describes a continent as “”Continents are understood to be large, continuous, discrete masses of land, ideally separated by expanses of water.” The Princeton University Worldnet, a lexical database for English, defines an island as a land mass (smaller than a continent) that is surrounded by water. But nobody has determined the size at which an island becomes a continent (or sub continent).

The concept of an island also has a unique and deep association with people.  What is about the island that conjures up ideas of both isolation and vacation, stress and relaxation, fear and desire?

The law in the U.S. is created by a complicated interplay among the Supreme Court, the U.S. Constitution and Bill of Rights, the legislature, cities and individuals.  For example, the First Amendment defines certain rights.  Cities create ordinances that may or may not be constitutional according to the court.  But a city does not need a court’s approval for a city ordinance or for citizens to vote for a proposition.  But, if an individual or organization believes that the ordinance is unconstitutional, they can file a law suit and challenge it in court.

The court must then interpret the law, for example the First Amendment, and make a ruling.  Appeals by the losing party can be accepted by a higher court and, eventually, the Supreme Court can choose to hear the case and make a ruling.  Once a ruling is made, one can say that a particular issue is no longer “most likely” true.  But the Supreme Court has been known to reverse a previous ruling.  A classic example is the court’s initial acceptance of the separate but equal concept affirming segregation (see Plessy v. Ferguson) and later overturning that ruling in Brown v. Board of Education.

This is usually how the law works but in the case of traffic islands, it is different.  Instead of a city passing an ordinance that is being challenged in order to establish or create law, individuals can use these spaces in accordance with their interpretation of the First Amendment.  We can also document our use and other people’s use.  Through our use and documentation, we are creating a legal context rather than through a law suit.  This becomes a placemaking/community building/participatory democracy project around the use of a seemingly absurd, quotidian space.  Through our use and documentation, we are able to show that this spaces are used and have been used.  This will serve to help protect and save pedestrian accessible traffic islands in the U.S.  It will ensure that they are there for our children’s children, that there will always be pockets of publicly owned space in highly visible areas of our urban spaces where people can peaceably congregate at any time, since w now live in a 24 hour city, for a picnic, to serenade a lover at midnight or share our voice with the bustle of undifferentiated humanity.  These are national parks of our culture, emblems of our constitution.  But the laws is contingent on how the Supreme Court rules, which can change over time.  The status of traffic islands, like all legal questions, is an open question of the law.   The declaration of traffic islands as Islands of LA Nat’l Park is in the spirit of saving these treasures for our future.

Note: There is, in fact, one case where a city restricted use of an island and was challenged.  In Rita Warren v. Fairfax, Fairfax County restricted use of a large, grassy traffic island in front of a government building.  Rita Warren filed for a permit to erect a holiday display on the Center Island mall but was denied because she wasn’t a resident or employee of the county.  The 4th Appellate court ruled in favor of Rita Warren indicating that traffic islands are traditional public fora and the restriction based on her not being a resident or employee of Fairfax county was unconstitutional.

“Civilization is the progress toward a society of privacy.  The savage’s whole existence is public, ruled by the laws of his tribe.  Civilization is the process of setting man free from men.”  – Ayn Rand

Here are two:

MIWON KWON (from One Place After Another)
“Certainly, site-specific art can lead to the unearthing of repressed histories, help provide greater visibility to maginalized groups and issues, and initiate the re(dis)covery of “minor” places so far ignored by the dominant culture. But inasmuch as the current socioeconomic order thrives on the (artificial) production and (mas) consumption of difference (for difference sake), the siting of art in “real” places can also be a means to extract the social and historical dimensions of these places in order to variously serve the thematic drive of an artist, satisfy institutional demographic profiles, or fulfill the fiscal needs of a city. ”

STEVEN WRIGHT
Beyond contemplative value: operative value

[There exist] art practices with low coefficients of artistic visibility, raising the possibility of a new status for art ­ in the absence of artworks, authorship or spectatorship. Envisaging art in terms of competence rather than performance, process rather than outcome, poses a distinct challenge for the art world because in losing its visibility as such, art has only its history to fall back on. For practices whose self-understanding
stems from the visual arts tradition, not to mention for the normative institutions that govern it, the problem cannot be merely wished away for if it is not visible, art eludes all control, all prescription, in short, all ³policing². If ever more artists seem prepared to deliberately impair their work¹s coefficient of artistic visibility, is it not in order to give teeth to the sort of consensus-busting power to which art often lays claim?

In contexts often far removed from art-specific spaces and time, the past few years have witnessed the emergence of a broad range of such practices, which, in spite of certain affinities and indeed, in some cases, of undeniable kinship, can only be described as art-related rather than art-specific activities, often laying no particular claim to art status. In many cases, these forms of symbolic production, implicitly questioning and even shattering the borders of art, live up to art¹s promises far more effectively than those practices upheld and underwritten by current artistic conventions. Yet the status of these art-related activities, has never been the object of sustained scrutiny (they are usually written off as conceptual leftovers of the seventies). Even contemporary aesthetic philosophy tends to invoke them as evidence only insofar as they are predefined as not art, in a hasty endeavor to again secure the borderlines of what is conventionally known as art. (Here is an other essay he has wrote: Users and Usership of Art: Challenging Expert Culture)

Islands of LA uses traffic islands as a vehicle to “generate cultural interchanges” or an ongoing sharing of culture and ideas.  A place where we listen and play, trying on and inter-changing with other people’s ideas as if we are not afraid of the unknown, of imagination, of examination, of changing our minds. As if those ideas were our own.

The intention is to question how we use public space by using traffic islands to promote open discussion and inquisitive/critical thinking in public for a brief moment, limited like a traffic island.  We visit, participate and then we go away, split up, go to work, whatever. This is not utopic.

PUBLIC SPACE/SPHERE

• Four Models of the Public Sphere in Modern Democracies by Ferree, Gamson, Gerhards and Rucht
  • A great survey and way to frame theories of the public sphere
• Contesting the Public Realm: Struggles over Public Space in Los Angeles by Margaret Crawford
  • This article changed the way this projected developed and considers public space but only the first page (shown above) was is available publicly.
• This project is inevitably about public space. There are 3 camps of thought that Doug Kelbaugh summarizes in this excerpt. From Doug’s excerpt:
  • New Urbanism is utopian (or at least reformist), inspirational in style and structuralist in conception.
  • Everyday Urbanism is non-utopian or atopian, conversational, and nonstructuralist.
  • Post Urbanism, probably better labeled Koolhaas Urbanism among design professionals and academicians, is heterotopian, sensational and post structuralist.
• Michigan debates on Urbanism: a series of fascinating debates on the 3 major theories.  Each book is a debate between two premier thinkers, a proponent and opponent of the given theory
  • Everday Urbanism
  • Post-Urbanism
  • New Urbanism
• Public Space by Habermas – An Encylopedic Definition
  • A short work from the person who defined the classic understanding of the public sphere