The Bahrainians recently engaged in peaceable assembly on a traffic circle or roundabout known as Pearl Monument located in Manama, protesting for Democracy. They chanted “Peaceful! Peaceful!” and, at first, the government allowed the assembly. In a video clip from February 17, 2010, Senior White House News Correspondent, Jake Tapper, says “Hilary Clinton and other senior officials are urging the government to respect the right of the protesters to peacefully assemble….”
What is the significance of Clinton urging foreign governments to allow their citizens to do something that Americans are not allowed to do? The peaceable assemblies in Egypt and Bahrain happened without permits and they were multi-day events. In the contemporary U.S., an assembly like this would require a permit and it would be extremely if not impossible to get one for a multi-day assembly. Furthermore, an assembly of this size would require the peaceable citizens to assemble behind a fence, away from the entities they are trying to reach. Without the permit, the demonstrators would be rounded up, handcuffed, fined and potentially sent to jail.
The impact of this is central to the meaning of freedom, assembly and the history of the U.S.. Peaceable assembly is a collective or group freedom that is a check and balance on government (compared with individual freedoms of speech, property, etc). It enables the people to gather, discuss and convey their opinions publicly through peaceable actions. Central to democracy was the right of the people as citizens to have a voice in their own governance before the need to escalate and rely on their right to bear arms. This legal dynamic also had an impact on civic life. Social and political group liberty naturally intertwined in the form of public meetings, parades, public meals and demonstrations. Thus, the value of assembly is not just to the political security and richness of society, but it is also central in impacting the entire culture and lived experience in the built environment.
Requiring permits turned this powerful political and social tool for the protection of democracy into a symbolic performance, vacant of serious value to protecting democracy and the rights of individuals. Functionally, it means that citizens cannot act spontaneously in response to government or forces in society. They are also regulated regarding where they can gather, which makes their voice often unheard. Furthermore, the fluid movement and the social development that is necessary for an active and safe civic life is greatly reduced. As the capacity for democracy on the streets and in the city was swept away, this constitutionally defined element of a democratic society vanished and civic life in America changed.
How can this be? The first hundred years of American legal history show the courts vigorously protected against cities’ attempts to require permits. They viewed the freedom to assemble as a core feature of the sanctity of American Democracy, and they held that requiring permits would eliminate the people’s right to freedom.
“Citizen’s have the constitutional right ‘of pursuing their own happiness;’ and…in a peaceable manner they may gather together in street parades and processions, if they so desire, provided they do not disturb or threaten the public peace or substantially interfere with the rights of others” (Illinois Lower Court, 1899)
“It is only when political, religious, social, or other demonstrations create public disturbances, or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes.” (Michigan State Supreme Court, 1886)
“At “[a] 1786 gathering of citizens in Petersburg [Virginia, the participants] 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.’
“In 1835, advocates of the ten-hour workday quickly organized a general strike in Philadelphia that included parades, demonstrations, and mass meetings. Because there were no procedures for getting an official license to march, “[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.” (Tabitha Al Haj, Neglected Right of Assembly + Susan G. Davis, Parades And Power: Street Theatre In Nineteenth-Century Philadelphia)
The right of assembly was so obvious to congress that Theodore Sedgewick of Massachusetts moved to eliminate peaceable assembly from the Bill of Rights because it was “derogatory to the dignity of the House to descend to such minutiae.” He believed the right to assemble was obvious and implied by the right to speak: “If people converse freely, they must assemble for that purpose: it is a self-evident, unalienable right which people possess.” (Annals of Congress 732, edited by J Gales, 1834) After vigorous debate, the congress decided to include it since this obvious right had been eliminated in previous occasions. Ironically, it has also been eliminated in America, where peaceable assembly is no longer possible as a protected, democratic liberty.
The amnesia about the right of peaceable assembly is complex. In short, the mid 19th century, tensions over various issues such as slavery as well as religion resulted in turbulence and some assemblies became violent, threatening individual liberty, safety and property. This reflected negatively on America and cities increasingly sought to require permits.
At the end of the 19th century, the court in Massachusetts was the first State Supreme Court to accept a city’s ordinance requiring permits. When the cases (Davies I, II and III) were reviewed by the Federal Supreme Court, the Federal Bill of Rights was irrelevant because the 14th amendment, which applied the Bill of Rights to the states, hadn’t taken its course.
In 1939, the Federal Supreme Court reviewed the right to assemble after the 14th amendment was passed in a case called Hague vs CIO. But the justices failed to properly investigate the history of peaceable assembly in the U.S. and the original debates when the Bill of Rights were written and ratified. The review therefore failed to defend the right of assembly as a liberty fundamentally different than speech and one, which should not require a permit.
As a result, an essential quality to the nature of democracy was eliminated from both our legal framework and our understanding of democracy. The crux of the dilemma is that we are unaware of the history, which greatly constrains our capacity to have a responsible discussion about this. Moreover, there is nearly a hundred years of Supreme Court rulings that make up the Public Forum Doctrine. This Goliath of history makes it difficulty to recognize the complexity of democracy that is, like a traffic island, hidden in plain view and surrounded by the bustle of everyday life.
Yet not all is lost. We have the pedestrian accessible traffic island! Just like in Bahrain, the pedestrian accessible traffic island in America is the freest place in the city to gather and exercise your collective right for peaceable assembly. Around the world in democratic nations that have forgotten the tradition and meaning of assembly (which dates back to the Magna Carta of 1215) can rejoice in our urban landscape and democratic powers. We can empower ourselves by utilizing these remarkable islands of liberty to enrich our built environment and exercise our group rights as citizens to exist as a public in the physical, built environment…
…and in America, we can rejoice, and celebrate these shrinky-dink plazas as the last frontier of American Freedom and the only place where you can peaceably gather at any time without a fee or permit.
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