Assembly, Press, and Petition
Assembly, Press, and Petition
Abstract and Keywords
Chapter 3 examines the Free Speech Clause’s interactions with its First Amendment cousins—the Assembly Clause, Press Clause, and Petition Clause. It explains how and why the Supreme Court collapsed these distinctive rights into a general “Free Expression Clause” that is governed primarily by free speech doctrines and principles. The chapter examines in detail the events and influences that led each clause to be subordinated to or supplanted by the Free Speech Clause. It explains the negative consequences of free speech expansionism, for the non-speech rights and the freedom of speech. The chapter considers existing proposals for recovering or reviving the Assembly, Press, and Petition Clauses, but argues that we must rethink and expand the project. We need to work toward a First Amendment pluralism that not only disaggregates the elements of the fictional “Free Expression Clause,” but also reconnects once and still “cognate” rights of speech, assembly, press, and petition.
THIS CHAPTER BEGINS the examination of specific relationships between the Free Speech Clause and non-speech constitutional guarantees. We start with three rights provisions that are close textual neighbors or cousins of the Free Speech Clause—the Assembly Clause, Press Clause, and Petition Clause. As Professor Michael McConnell has observed, despite the fact that the First Amendment contains these several distinctive rights provisions, “in recent decades, the Supreme Court has tended to collapse the various expressive freedoms of the First Amendment . . . into an undifferentiated ‘freedom of expression,’ or more often, simply ‘freedom of speech.’ ”1 Under this approach, the Free Speech Clause has subordinated and largely supplanted its close First Amendment cousins. As explained in the Introduction, this treatment partially accounts for the book’s focus on the Free Speech Clause, rather than on the broader category of “expressive” rights. The fact that these four rights provisions are often treated as parts of a fictional “Free Expression Clause,” or as merely ancillary to freedom of speech, is a notable manifestation of the Free Speech Clause’s sweeping character.
Although assembly, press, and petition activities have all played pivotal roles in terms of the recognition, interpretation, and enforcement of non-speech rights—including the rights discussed in subsequent chapters—the Free Speech Clause has received the bulk of attention and corresponding credit. To be sure, there are still (p.72) references to the “right to assemble,” “freedom of the press,” and “petitioning” government in judicial decisions, scholarship, and public discourse. However, by and large, the “expressive rights” formulation is pervasive, and freedom of speech now stands in for the larger group of First Amendment rights. This dominance is evident even in public opinion polling. Insofar as they are able to name any First Amendment right, by a very wide margin Americans are able to identify only the freedom of speech.
The chapter primarily addresses two aspects of the phenomenon of free speech expansionism as it relates to these distinct but related rights. First, how and why did it come to pass that the Free Speech Clause subordinated all three of the textually distinctive rights of assembly, press, and petition? What dynamic events and influences produced the “Free Expression Clause”? Was the process the same for all of the subordinated provisions, or were the relational dynamics different? Second, the chapter considers whether it might be possible to disaggregate the “Free Expression Clause” and recombine its component rights in ways that are more synergistic and mutually facilitative. Scholars have offered specific proposals for recovering, reviving, or rediscovering the Assembly, Press, and Petition Clauses.2 That is an important and necessary starting point. However, the chapter advances a concept of “First Amendment Pluralism” that re-connects the free speech, assembly, press, and Petition Clauses as distinct, yet cognate, rights provisions.
As indicated in the Introduction, this book’s primary focus with regard to free speech/non-speech rights relationships is on contemporary or modern dynamics. Specifically, the focus is on the period that begins with the “incorporation” of First Amendment and other rights against the states. Only after this occurred did these rights begin to play a more prominent role in America’s constitutional democracy. However, as also suggested, early interactions can shed valuable light on the relationships between and sometimes among constitutional guarantees. Thus, we ought to pay at least some attention to the framing and Reconstruction Era dynamics that formally placed free speech and non-speech rights in proximity to one another.
Framing First Amendment Rights
As First Amendment scholars have observed, the records relating to the First Amendment’s ratification are sparse.3 We have relatively little in the way of contemporaneous records concerning what those who framed and ratified the First (p.73) Amendment specifically understood the freedoms of speech, assembly, press, and petition to mean. Nor is it clear how the founders understood these rights to relate to one another. However, that is not the same as saying we have no sense at all of how these rights were generally understood, or of their relationships in these early years. Indeed, scholars continue to produce interesting findings and theories in this regard.4
We do know that when considering the specific language to use in the text of the First Amendment, the framers borrowed heavily from early state constitutions. Of these state constitutions, only Pennsylvania’s referred to both free press and free speech rights.5 The other state constitutions expressly provided for free press protections, but not for a separate and distinct freedom of speech. All of the state constitutions provided for petition rights, and most also made some provision for the right to assemble. Typically, assembly and petition appeared together in the text of these early state documents. Among other things, this early history suggests that had the Virginia ratifying convention used its own constitution rather than the Pennsylvania model when it proposed its plan for the Bill of Rights, the Free Speech Clause would likely not have been included.6
In constructing the language of the First Amendment, the framers also looked to early English practices for guidance. One possible reason for the absence of explicit free speech provisions is that at the time of the framing, assembly, press, and petition all had more venerable pedigrees than did the right to free speech. The right to petition was the oldest in the group. Rights of assembly and press were also common in early English traditions and practices. Freedom of speech was not new, at least not in the sense that British and early American citizens had not heard of, practiced, or explicitly defended the right. However, at the time the First Amendment was framed and ratified, freedom of speech may have been conceptually underdeveloped relative to assembly, press, and petition.7 It is one of the ironies of the early history that freedom of speech, which has come to subordinate neighboring expressive rights provisions, was neither the oldest nor the most venerated of the First Amendment’s rights.
Indeed, some scholars have interpreted the original materials to suggest that the Free Speech Clause was either an afterthought, or was originally thought to be subsumed under the Press Clause. As Professor David Anderson has observed: “Freedom of the press—not freedom of speech—was the primary concern of the generation that wrote the Declaration of Independence, the Constitution, and the Bill of Rights.”8 Anderson claims that freedom of speech was a late addition to the pantheon of rights, whereas freedom of the press occupied a central positon from the very beginning. Similarly, Professor Leonard Levy has claimed that freedom of speech “developed as an offshoot of freedom of the press, on the one hand, and on (p.74) the other, freedom of religion—the freedom to speak openly on religious matters.”9 However, this is not a uniform interpretation of the early relationship between free speech and free press. Other scholars, examining the same materials, have concluded that it was the freedom of speech that actually birthed freedom of the press. For example, David Lange has argued that freedom of the press “evolved as an extension or amplifier of the freedom of speech.”10
One of the things that complicates efforts to construct the early relationships between and among what would become the First Amendment’s “expressive” clauses is that the framers often used “freedom of the press” and “freedom of speech” interchangeably. This has led scholars to conclude that, whichever right was prior, the two rights overlapped or may have even been coterminous with one another.11
Scholars continue to examine the early understanding of “expressive rights.” In a recent article, Professor Jud Campbell argues that the framing generation’s understanding of the relationship between free press and free speech was significantly influenced by natural rights conceptions and discourse.12 Campbell claims that “the Speech and Press Clauses were originally rooted in a broader Founding-Era discourse about natural rights” that generally treated the provisions not as redundant but as possessing “distinct meanings.”13 Professor Campbell contends that if we want to understand these meanings, we need to study the natural rights history of the First Amendment.
Framing-era discourse also considered the freedom of speech relative to the right of assembly. The history of active assembly in the colonies and early states suggests that assembly rights may have occupied a place more central to the hearts, minds, and lived experiences of framing-era Americans.14 However, other commentators claim that owing to the long history of the right to petition government for redress of grievances, freedom of speech may have been an offshoot of the petition right.15
In addition to having incomplete and conflicting accounts of how specific First Amendment dyads related to one another, we know next to nothing about why the drafting committee in the First Congress combined speech, assembly, press, and petition rights into a single amendment.16 In the framing and ratification debates, these rights were often discussed together and sometimes, as in the case of freedom of speech and freedom of the press, used interchangeably. The New York ratifying convention was the first to propose a provision containing press, assembly, and petition—but not free speech—rights.17 A separate Free Speech Clause was added later, but there is no existing record explaining why this was done. Nor is there any reported discussion of how the framers and ratifiers believed these rights provisions related to one another in form or substance.
Scholars actually differ as to whether one can answer these sorts of questions with any confidence. Professor David Anderson has suggested that we could attribute (p.75) the combination of rights to Congress’s recognition that the First Amendment, as proposed for ratification, was “a cluster of distinct but related rights, complementary means by which thought, belief, and expression are protected from governmental interference.”18 However, at the same time, Anderson warns against ascribing grand theories or motives to the framers and ratifiers of the First Amendment.19
Other scholars have posited some general connections between and among the First Amendment’s speech, assembly, press, and petition provisions. Professor Akhil Amar, a leading authority on the Constitution’s Bill of Rights, has offered an intratextual interpretation of the First Amendment’s “expressive” rights. Amar claims that at the framing, rights of speech, assembly, press, and petition all served the central structural function of restraining the powers granted to the new central government.20 Thus, both separately and in combination, these rights (along with rights relating to religious liberty) were considered to be crucial checks on the newly formed government. Majoritarian and collective rights to communicate, assemble, publish, and petition enabled ordinary citizens to resist various forms of governmental overreaching.
As an intratextualist, Professor Amar claims that the words and phrases of the First Amendment must be read in relation to one another. And he claims that once we realize that “freedom of the press,” “the freedom of speech,” and the other rights in the First Amendment are all informed by conceptions of popular sovereignty, it makes sense to treat them as guarantees with distinct meanings and functions but also as provisions concerned with a common cause or purpose. Professor Amar argues that as these rights were absorbed into the Bill of Rights from earlier (English and state) practices and traditions, their meanings were subtly, but critically, altered.21 His interpretation suggests that First Amendment “expressive” rights are best understood as coordinate and cognate guarantees whose purpose was to facilitate popular sovereignty.
Framing-era events and influences indicate that the dynamics that produced speech, assembly, press, and petition rights involved English traditions, colonial practices, and natural rights discourse. However, the framing of the First Amendment raises as many questions as it answers, particularly with regard to how freedoms of speech, assembly, press, and petition were intended or understood to relate to one another.
For example, did the concept of free speech arise out of the press right, or vice versa? Did these provisions simply reflect or represent different kinds of “expressive rights,” or were there important substantive distinctions among them? One thing that does seem clear, in hindsight, is that in the beginning the Free Speech Clause was not the central or subordinating provision that it would later become.22 If there was a star during these proceedings, it was likely freedom of the press.23 It is possible, (p.76) as Professor Anderson and Professor Amar suggest, that what became the suite of rights in the First Amendment was intended to be a class of cognate and mutually reinforcing provisions. However, we must acknowledge the possibility that the framers simply had no preconceived notion of how First Amendment rights would relate to or intersect with one another, in substance or practice. As we know, these intersections have been worked out over time, as the various provisions have been invoked, exercised, adjudicated, and interpreted.
The Reconstructed First Amendment
Whatever the intended original relationships between and among First Amendment rights were, it is important to consider whether post–Civil War reconstruction events and influences fundamentally altered them. Professor Amar contends that they did. He argues that Reconstruction Era dynamics altered the meanings and relationships of the First Amendment’s speech, assembly, press, and petition provisions in meaningful ways.
As early as the end of the Civil War, it was evident that all of these “expressive” provisions were critically important to the process of constitutional change. Abolitionists and proponents of the Fourteenth Amendment invoked and relied upon all of them to advance their causes. Later, as free speech, assembly, press, and petition rights were absorbed through the Fourteenth Amendment’s Due Process Clause and eventually made applicable against the states, their functions and meanings would change in other critical and lasting respects.
As noted earlier, Professor Akhil Amar has argued that the First Amendment’s guarantees were originally intended as checks against an overreaching national government. As structural protections, the provisions primarily benefitted political majorities. However, as reconstructed, Amar argues that the Free Speech Clause and Press Clause were invoked and interpreted in ways that benefitted primarily minority speakers—Unionists, abolitionists, and freedmen. As Professor Amar has observed, these speakers were all “geographic, cultural, and ethnic outsiders who were critical of dominant social institutions and opinions.”24 Thus, as Amar observes, “[t]he new First-Fourteenth Amendment tradition is less majoritarian and more libertarian.”25
Reconstruction and incorporation dynamics (including public debates, commentaries, judicial decisions, etc.) also altered public and private understandings of First Amendment assembly and petition rights. These were now similarly considered to be not political rights possessed by the privileged few (i.e., white males), but civil rights belonging to blacks, women, and others who were historically not considered full members of the political community.26
(p.77) Thus, the reconstructed First Amendment—the one produced as a result of the dynamic intersection between the Fourteenth Amendment and “expressive” rights—resembled the one Americans have come to recognize. As the First Amendment’s guarantees were incorporated against state and local governments, they began to take on the form of distinctive, but related, individual rights. These rights were enjoyed by every person, but were of particular value to minority speakers, social dissidents, and political outsiders. Abolitionists, Reconstruction Republicans, and others invoked these rights to achieve momentous constitutional and democratic changes.
Over the course of the next century, however, the Free Speech Clause would come to dominate and even supplant its First Amendment cousins. Instead of a suite of independent individual rights, the provisions of the First Amendment would collapse into a fictional “Free Expression Clause” or simply be treated as ancillary to the Free Speech Clause.
The “Free Expression Clause”
As the First Amendment’s various clauses matured, the relationships between the Free Speech Clause and the Assembly Clause, Press Clause, and Petition Clause changed in drastic ways. The most notable change was that these rights generally collapsed into a “Free Expression Clause.” Here is how Professor Ashutosh Bhagwat recently summarized the modern understanding of First Amendment speech, assembly, press, and petition rights:
One noteworthy feature of the Supreme Court’s modern First Amendment jurisprudence is that it is not truly a First Amendment jurisprudence at all; rather, it is a series of decisions interpreting the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The Press Clause has not been addressed in over thirty years. The relevance of the Petition Clause has been limited to the peripheral issue of access to courts—and even in that sphere, a recent decision limits its independent significance. Even the nontextual right of association, which has not been entirely abandoned, has been made subservient to free speech, even though historically the right clearly derived from the Assembly Clause.27
As discussed in Chapter 4, Professor Bhagwat might well have added that in important respects, the Free Exercise Clause has also been subordinated to the Free Speech (p.78) Clause. In any event, few would likely dispute the accuracy of his description. We do not have a comprehensive and, perhaps more importantly, comparative account of how and why the Free Speech Clause came to subordinate its First Amendment cousins, and how the “Free Expression Clause” came into being.28 This part of the chapter focuses on the dynamics that produced this seemingly contra-textual result. Understanding these dynamics will help explain how free speech expansionism occurs, and perhaps how to reverse some of its effects. It will also inform the prospects of a pluralist approach to the subject rights, which would first disaggregate and then reconnect the cognate provisions of the First Amendment.
The Initial and Enduring Advantages of the Free Speech Clause
Before considering the clause-specific dynamics, I want to make some initial observations about the jurisprudential and intellectual advantages the Free Speech Clause has long enjoyed over its neighbors. Early judicial and scholarly accounts of the First Amendment privileged the Free Speech Clause and freedom of speech in ways that paved the way for the modern “Free Expression Clause.” Modern conventions, including the manner in which courts and commentators have discussed First Amendment rights, have also contributed to the dominance of the free speech right.
It was not until the first quarter of the twentieth century that the First Amendment’s “expressive” rights provisions received sustained attention from the Supreme Court and constitutional scholars. Before this, the rights were of course subjects of interest in judicial and academic quarters, as well as in public discourse more generally. However, at the dawn of the twentieth century, the First Amendment had yet to be fully “reconstructed” and incorporated. Its guarantees did not yet apply to the states, and courts and scholars had not yet advanced any convincing narrative of their respective meanings or relationships to one another. As noted earlier, the lack of ratification and other early materials elucidating the clauses undoubtedly contributed to the absence of such accounts.
At this point, the Free Speech Clause, like its neighboring First Amendment rights, was in its infancy. In some of the initial First Amendment cases to reach the Supreme Court, antiwar dissidents challenged the federal Espionage Act on First Amendment grounds. In those cases, the first group of which were decided in 1919, the Supreme Court sustained indictments based on communications that were critical of the war effort and advocated undermining it in certain respects.29 The First Amendment claims in these cases were grounded not just in the Free Speech Clause, but sometimes in the Press Clause, the Assembly Clause, and/or the Petition Clause (p.79) as well. No one right being at that time any further developed than the others, and the relative distinctions between these rights being unclear, litigants naturally invoked the panoply of First Amendment rights.
This was the Supreme Court’s first opportunity to consider and develop the individual and perhaps relational particulars of the First Amendment’s speech, press, assembly, and petition provisions. In addition to defining the substance of these distinct rights, the Court might have taken the opportunity to distinguish among them and even explain their relationship to one another. Instead, the Court primarily analyzed the early cases under a Free Speech Clause conception—“clear and present danger”—that focused on the content and potential consequences of a certain class or category of communication (as it would later come to be understood, words “inciting” others to unlawful action).30
As they debated its merits, the principal intellectual forces advocating and objecting to this standard—most notably, Justice Oliver Wendell Holmes, Jr., Justice Louis Brandeis, Professor Zechariah Chafee, and Judge Learned Hand—focused primarily on the content and effects of the speaker’s words. To be sure, some of their intellectual forebears, including John Stuart Mill and John Milton, railed against censorship of both speaking and pamphlet printing.31 Further, in some of the World War I cases, the speakers were engaged in what might be considered “press” activities—publishing and distributing information. This may account for why the justices sometimes referred to “free speech and press” together in some of the early cases.32 However, although the defendants had peaceably assembled together and were also engaged in petitioning their governments for redress of grievances, these rights were essentially ignored.
Thus, it was speech—and in particular the freedom of speech—that occupied center stage from the very start. In his famous dissent in Abrams v. United States, which ushered in our modern Free Speech Clause, Justice Holmes first discussed the intent requirement under the Espionage Act and then moved on to what he described as “a more important aspect of the case. I refer to the First Amendment to the Constitution, that Congress shall make no law abridging the freedom of speech.”33 Thus, although the defendants were convicted of publishing and distributing pamphlets, activities covered by the Press Clause, Justice Holmes addressed only “the right to free speech.”34 His famous reference to the “marketplace in ideas” extolled the virtues of allowing speech and the expression of opinions, not the right to print and publish pamphlets, or to assemble with others for expressive or other purposes, or to petition government for redress of grievances.35 Holmes’s iconic dissent was fundamentally—indeed solely—concerned with the freedom of speech.
This does not mean, of course, that the Court or individual justices never cited other First Amendment clauses. In Whitney v. California (1927), which upheld the (p.80) conviction of Anita Whitney for having served as a delegate to the 1919 organizing convention of the Communist Labor Party of California, the majority briefly considered and rejected Whitney’s free speech and assembly claims. Justice Brandeis’s concurrence, which Justice Holmes joined, referred to “free speech and assembly” no fewer than eleven separate times.36 However, as is true of Holmes’s dissent in Abrams, the passages the Brandeis concurrence are most famous for focus primarily upon the freedom of speech.37
The majority’s framing of issues and the passages in these famous dissents plainly demonstrate the early influence—perhaps dominance is not too strong—of the Free Speech Clause and the concept of freedom of speech. Despite the fact that assembly, press, and less frequently petition rights received some honorable mentions, the Court’s early decisions were then, as today, described and heralded as “free speech” precedents.38 Indeed, the Court has itself described Justice Brandeis’s Whitney concurrence as the “classic formulation” of the free speech right.39 And this is how the influential dissents of Holmes and Brandeis have been, and continue to be, taught to generations of law students, future lawyers, and jurists. First Amendment casebooks generally present the Holmes and Brandeis dissents as steps on the road to the development of modern Free Speech Clause doctrine and theory, not as explications of early press, assembly, or petition rights.
These early decisions and their focus on free speech spawned an academic discipline devoted specifically to the Free Speech Clause and, to a lesser extent, “expressive” rights. Influential early theorists, including Alexander Meiklejohn, focused principally on the justifications for protecting the freedom of speech.40 Meiklejohn’s operative metaphor was the town hall meeting, a gathering that often involves peaceable assemblies that debate petitions for government redress and action. Nevertheless, Meiklejohn focused on the importance of free speech to voter education and effective exercise of the franchise.
Other prominent theorists similarly focused on the Free Speech Clause, freedom of speech, or “expressive” rights. Thomas Emerson’s influential treatise, The System of Freedom of Expression (1971), devoted attention to speech, assembly, press, and petition, but it was primarily concerned with free speech—its exercise, justifications, and relationship to democratic governance.41 Emerson was an early adopter of the phrase “freedom of expression,” which collapses or aggregates speech, assembly, press, and petition rights into a conception primarily concerned with freedom of communication. Like Meiklejohn’s seminal work, Emerson’s theoretical contributions were principally concerned with describing, explaining, and justifying the freedom of speech.
During this formative period, nothing approaching this kind or degree of energy was devoted to explicating assembly, press, or petition rights. From the start, then, (p.81) the Free Speech Clause and the freedom of speech exerted special influence on judicial, scholarly, and public attitudes and understandings of the First Amendment. Early treatments cast a considerable free speech shadow over rights to assembly, press, and petition. As we will see, owing to other events, this shading would later become a virtual eclipse.
Why might early jurists and thinkers have gravitated toward the Free Speech Clause and the concept of free speech? As discussed earlier, the adoption and ratification materials offered little guidance concerning the substance of, much less the relationship between and among, the First Amendment’s clauses. Both before and after the Reconstruction Era, “freedom of speech” was an effective rallying cry for dissident and minority speakers. Courts and scholars, being generally free to choose where to focus their energies, continued to devote special attention to the Free Speech Clause in the World War I and postwar periods. Further, activists, litigants, judges, and scholars likely all viewed the Free Speech Clause and freedom of speech as rhetorically and otherwise useful rubrics for resisting governmental oppression and protecting dissident voices and ideologies. Thus, as we will later see, the Free Speech Clause offered a basis for the Court to rule in favor of Jehovah’s Witnesses without granting them “special” free exercise rights, to facilitate civil rights and race equality through the recognition and enforcement of basic speech rights possessed by all, and to protect the institutional press without granting it any special rights. In sum, as one scholar has observed, “free speech arrived on the national stage when and how it did because the idea of free speech provided a malleable and culturally resonant solution to the most pressing concerns of the era.”42
Finally, at the outset, we ought also to take note of certain conventions regarding invocation and discussion of First Amendment rights, particularly although not exclusively in the courts. First, from the beginning and continuing today, the Supreme Court rarely invokes these rights with reference to formal clauses—the Free Speech Clause, Assembly Clause, Press Clause, etc. More typically, the Court writes in general terms about “freedom of speech,” “the right of assembly,” “freedom of the press,” and “the right to petition”—or simply “the First Amendment.” One reason this book uses the more formal clause designations is to emphasize that they are in fact separate and distinct textual provisions, with presumptively independent meaning and significance.
Second, the Court’s textual approach is indicative of a certain nonchalance or even carelessness when it comes to First Amendment rights. The Court has often been reluctant or unwilling to spell out in explicit terms which of the First Amendment’s guarantees is actually doing the work in its decisions. This was true in the World War I cases, where “free speech and press” were sometimes invoked. Stated bluntly, the Court has often seemed to be fudging matters by refusing to explicitly distinguish (p.82) between or among the First Amendment rights it is enforcing or interpreting. For their part, scholars have often followed suit, lumping the First Amendment’s “expressive” guarantees together or exhibiting a similarly cavalier attitude about which clause or clauses are being discussed or constructed.43
Before considering in more specific terms the dynamics that resulted in the subordination of the Assembly Clause, Press Clause, and Petition Clause, we ought to appreciate the critical head start the Free Speech Clause and freedom of speech received. Although assembly, press, and petition rights have been, and continue to be, critically important to American constitutional democracy, for much of our history there has been a disproportionate focus on the Free Speech Clause, freedom of speech, and “expressive” rights. As noted, there is some irony in this, particularly when one considers the rather humble and arguably subordinate position the Free Speech Clause occupied at the framing of the Bill of Rights.
The Assembly Clause
As discussed, many early state constitutions expressly protected the right of peaceable assembly. In modern First Amendment jurisprudence, the Assembly Clause has only occasionally received significant attention. As noted earlier, the right was repeatedly invoked, alongside the freedom of speech, in Justice Brandeis’s concurrence in Whitney v. California (1927).
Thereafter, the assembly right did remain in the national and international spotlights to some extent. The right of assembly, again in conjunction with the freedom of speech, also provided critical aid to the Civil Rights Movement. However, after the civil rights era, the Assembly Clause and the right of assembly largely faded from First Amendment jurisprudence, scholarly works, and public discourse. Litigants turned increasingly to the Free Speech Clause, even in cases involving collective activities that fit more comfortably within the history and language of the Assembly Clause. Ultimately, the assembly right was transformed—first into the right of “association,” and later into the right of “expressive association.” This transformation, which was complete by the 1980s, subordinated the right of peaceable assembly to the Free Speech Clause and situated it within the “Free Expression Clause.”
The dynamics that brought about the transformation from assembly to association, and the Assembly Clause’s eventual collapse into the Free Expression Clause, occurred over the course of several decades. They involved many different influences and institutions, including of course the Supreme Court. Professor John Inazu, a leading authority on the Assembly Clause, has published a comprehensive account of the clause’s history and contemporary meaning.44 My account of the (p.83) dynamics between the Free Speech Clause and the Assembly Clause draws liberally from Inazu’s study.
As Professor Inazu and others have observed, the Assembly Clause’s initial entanglement with neighboring rights did not involve the Free Speech Clause but rather the Petition Clause. The First Amendment protects “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” One interpretation of this language is that it creates a narrow right to assemble, for the specific purpose of presenting petitions to government. By the end of the nineteenth century, the Supreme Court had indicated support for this interpretation.45 Some scholars also adopted this narrow interpretation of the Assembly Clause.46 Of course, if the Assembly Clause was indeed tethered to the Petition Clause in this way, its scope would be drastically limited—not only because it would be limited to petitioning activity but also, as we will see, owing to the narrowing of the Petition Clause itself.
Professor Inazu persuasively argues that this interpretation of the Assembly Clause is erroneous. It ignores critical drafting details and, more importantly, a historical record that clearly demonstrates that the framers and ratifiers of the First Amendment understood the right to peaceably assemble in far broader terms.47 In these respects, the Supreme Court’s treatment of the Assembly Clause is an example of the cavalier manner in which the discrete clauses of the First Amendment have been lumped together or aggregated in ways that limit their meaning and enforcement.
As it happens, the Court’s narrow interpretation of the Assembly Clause did not entirely suppress the recognition and exercise of assembly rights.48 Indeed, as Professor Inazu demonstrates, throughout the nineteenth and twentieth centuries, the right of assembly was frequently invoked and considered in American legal and political discourse. Religious organizations, abolitionists, suffragists, and union workers all explicitly relied on the right of assembly. Further, twentieth century Supreme Court decisions did not invariably follow the crabbed interpretation that merged the assembly and petition guarantees. Again, Justice Brandeis’s famous Whitney concurrence relied extensively on both free speech and assembly.49
At the 1939 New York World’s Fair, the right of assembly was feted as one of the Constitution’s celebrated “Four Freedoms” (along with religion, speech, and press). Two years later, in his State of the Union address, President Roosevelt omitted assembly from his remarks addressing the “four essential human freedoms.” However, as Inazu explains, the right of peaceable assembly continued to play a significant role in American politics and culture.50
Alas, the Assembly Clause managed to escape the textual snare of the Petition Clause only to be swallowed up by the Free Speech Clause. As Professor Inazu (p.84) observes, by the end of the 1960s, “the right of assembly in law and politics was largely confined to protests and demonstrations.”51 And even in those contexts, Supreme Court decisions were being grounded in a developing free speech framework rather than a distinct doctrine of peaceable assembly. In other words, by the middle of the twentieth century, assemblies were formally protected not in their own right, but rather as a means of facilitating certain kinds of speech or expression. As Inazu observes, by the early 1980s, “the Court swept the remnants of assembly within the ambit of free speech law.”52
In Liberty’s Refuge: The Forgotten Freedom of Assembly (2012), Professor Inazu examines a variety of dynamics that led to the Assembly Clause’s subordination to the Free Speech Clause. He explains how a new and un-enumerated constitutional right of association gradually replaced the right to assemble. Inazu also demonstrates that this right of association came to be based not on the Assembly Clause, but on the Free Speech Clause. The discussion that follows focuses on the principal highlights of this dynamic process.
As Professor Inazu explains, the Assembly Clause became a right of “expressive association” through a complex process that entailed, first, judicial recognition of a right of “association” and, second, a gradual linking of that right to Free Speech Clause principles.53 This connection was forged over the course of two eras or periods, which Inazu refers to as the “national security era” (1940s–1960s) and the “equality era” (1960s–1980s).54 In each of these eras, political, jurisprudential, and theoretical factors shaped the right of association and ultimately merged it into the Free Speech Clause.
During the 1930s, the Supreme Court “incorporated” or applied the Free Speech Clause and the Assembly Clause to the states. At that critical point, the Court described the right of assembly as a “right cognate to those of free speech and free press and . . . equally fundamental.”55 In NAACP v. Alabama (1958), the decision that first recognized an independent “right of association,” the Court grounded the new right in both the freedom of speech and the right of assembly.56 Although it was based in part on assembly principles and precedents, the right of association extended only to collective action “for the advancement of beliefs and ideas.”57 Thus, the association right seemed to be centrally based on free speech principles.58
Contemporaneous press accounts of the decision demonstrate a degree of confusion regarding the newly recognized right.59 In subsequent cases, the Court offered little clarification. It continued to link “association” with both freedom of speech and the right of peaceable assembly.60 Some First Amendment scholars defined the right of association in terms of assembly, while others linked it to the Free Speech Clause and/or the Press Clause.61 As Professor Inazu observes, owing in part to this uncertainty, the right of association was “more likely to be shaped (p.85) by the intellectual context in which it emerged than by ‘traditional constitutional doctrines.’ ”62
As the rights of association or expressive association were being debated in the courts and law reviews, pluralist political theories were gaining popularity. As Professor Inazu explains, these theories, which focused on achieving balance and harmony within American democracy, fostered a concept of association that emphasized stability and homogeneity in groups.63 Lawyers and judges, including Supreme Court justices, were educated within and hence presumably influenced by this intellectual framework. Thus, over time, a right of association developed in which groups such as the NAACP, which supported democratic values such as equality, were protected but groups such as the Communist Party, which espoused views antithetical to democratic values, were not.64 This forged a critical link between a group’s expressive content and its enjoyment of collective “associational” rights.
During what Inazu calls the “civil rights era,” the Free Speech Clause crept further into the picture. As Professor Inazu explains, the continuation of this dynamic process during what he calls the “equality era” also had political, jurisprudential, and theoretical dimensions.
Politically, the primary issue was whether associational rights could justify various forms of private discrimination against African Americans.65 This political clash produced precedents in which the Court was obliged to explain the limits of constitutional exclusion. In doing so, it sometimes focused on the expressive harm—or lack of it—to groups wishing to exclude African Americans from commercial, social, and educational institutions.
For example, in Runyon v. McCrary (1976), the Court construed the Civil Rights Act of 1866 to prohibit racial discrimination in private, commercially operated, nonsectarian schools.66 Part of the Court’s reasoning was that the compelled inclusion of African-American students would not affect the schools’ teaching or otherwise affect its ability to communicate ideas and beliefs.67 These, of course, are classic free speech concerns. Meanwhile, in the seemingly very distant area of reproductive rights, some justices had articulated a new (and similarly un-enumerated) “right to privacy.” Under this right, associations were treated as forms or means of expression. Here, too, protection for association was considered valuable mostly or solely to the extent that it facilitated expressive freedoms.68
As Inazu explains, during the 1970s, Rawlsian liberalism, which was based on premises of stability, consensus, and public reason, led to the development of a right of association “conditioned by equality, self-respect, and other liberal values.”69 According to this iteration of the right of association, illiberal groups did not have full associational autonomy. Thus, their right to exclude was subject to certain limits. And again, those limits were primarily defined in expressive terms. (p.86) In Roberts v. United States Jaycees (1984), for example, the Supreme Court divided the right of association into “intimate” (privacy-based) association and expressive (free-speech-based) association.70 It held that Minnesota’s anti-discrimination law, which compelled the Jaycees to accept women as full voting members, did not violate the Jaycees’ right of “expressive association” because the compelled inclusion would not “impede the organization’s ability to engage in . . . protected activities or to disseminate its preferred views.”71 After Roberts, non-intimate groups that were unable to demonstrate they were “expressive” simply failed to qualify for protection under the First Amendment right of association. In other words, with regard to the right of association, Roberts and other precedents defined a free speech criterion—expressiveness—as a condition of coverage.
The Supreme Court also made some other doctrinal moves that would seal the fate of the Assembly Clause and render it ancillary to the Free Speech Clause. Roberts applied a standard of review, based on “compelling state interests unrelated to the suppression of ideas,” that closely tracked the strict scrutiny standard applicable to content-based speech restrictions.72 In a subsequent case, the Court clarified that a group wishing to maintain a right of association claim must demonstrate that it was “organized for specific expressive purposes” and that it “will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership.”73
Evidence of the full extent of free speech subordination has come in more recent cases. Thus, in Christian Legal Society v. Martinez (2010), the Court “merged” the free speech and association claims of a Christian group that challenged a public law school’s requirement that it take “all comers”—including those who did not share its religiously-based commitments—in order to obtain certain school benefits.74 The Court declined to separately analyze the group’s “expressive association” claim, concluding that it was essentially duplicative of its free speech claim.
An important part of the dynamic that is missing from Professor Inazu’s account relates to the advantages the Free Speech Clause enjoyed as a result of judicial precedents and scholarly conventions elevating the early status of the freedom of speech. Inazu’s account shows how the development of a right of association, and a right to privacy, eventually produced a right of “expressive association.” But why make “voice” or expression so central to the new right? After all, it seems obvious that not all assemblies or associations exist for the purpose of conveying messages or viewpoints.75 For example, many social clubs do not seek to convey discernible “viewpoints” or “messages” to the public. The right of “peaceable assembly” might just as well be considered a freestanding right to assemble for any lawful purpose, without regard to communication or expression.
The Free Speech Clause’s early jurisprudential and intellectual advantages made the turn to expression more likely. The Free Speech Clause was textually capacious (p.87) enough to serve as a kind of umbrella guarantee for assembly rights. Beginning with the World War I cases and proceeding through the Hughes Court era of the 1930s and 1940s, the Supreme Court consistently manifested a preference for free speech principles and doctrinal frameworks. Even before the national security and equality eras Inazu identifies, the Free Speech Clause had become a constitutional, political, and social superstar—first among putative equals in the realm of First Amendment rights.
By the 1980s, when the Supreme Court recognized a right of “expressive association,” the Free Speech Clause had already been used to provide expansive protection for minority and dissident speakers for decades. It was not much of a stretch to apply the same principles to minority and dissident groups. Moreover, by this time Free Speech Clause doctrines, standards of review, and principles had significantly matured, particularly relative to other “expressive” rights—including the assembly right, which had for a time been tied to the Petition Clause and thereafter was only intermittently invoked. It likely seemed a logical next step to apply free speech principles and rights to collective activities.
In the speech-saturated political and cultural eras that birthed the right of association, focusing on voice and official viewpoint suppression made considerable jurisprudential sense. The expressive association idea afforded collective protections that essentially mirrored those enjoyed by individuals under the Free Speech Clause. The concept of “expressive association” recognized the value in collective action, but limited the scope of the right to protection for group voices and viewpoints. The new right relied on existing free speech principles such as speaker autonomy, viewpoint neutrality, and public forum doctrine. These building blocks were readily at hand. In short, owing in part to its early advantages and subsequent maturation, the Free Speech Clause provided a familiar framework for other First Amendment rights.
As Professor Inazu’s account shows, the dynamics through which the Free Speech Clause effectively supplanted the Assembly Clause were varied and complex. They involved an initial entanglement with the Petition Clause, a transformation of assembly into association, and finally an effective surrender to the Free Speech Clause in the form of a right to “expressive association.”
The Press Clause
The story of the Press Clause’s intersection with the Free Speech Clause shares some similarities with the Assembly Clause narrative. The Supreme Court has not based a decision solely on the Press Clause in more than three decades.76 Like the Assembly Clause, the Court has generally interpreted the Press Clause as ancillary to the Free Speech Clause and as one of the collection of First Amendment “expressive” rights. (p.88) It has stated on many occasions that the Press Clause grants the so-called “institutional” press—reporters, the media, etc.—no greater rights than those enjoyed by other speakers under the Free Speech Clause.77
This is a long and rather hard fall from grace. As discussed earlier, during the framing and ratification periods, the Press Clause was arguably deemed the most important among the First Amendment’s “expressive” guarantees.78 All state constitutions provided for a free press right, while only one contained a distinct free speech provision. The subject of prior restraints and licensure of printing presses was a central focus of discourse surrounding the Press Clause. Nevertheless, despite this early treatment and the obvious importance of a free press to American democracy, the Press Clause has all but disappeared from judicial decisions. That does not mean, of course, that the institutional press is unable to function or that it does not benefit from laws and customs that facilitate its activities. However, as one commentator observed, “as a matter of positive law, the Press Clause actually plays a rather minor role in protecting the freedom of the press.”79
The dynamics that led to the Press Clause’s subordination to the Free Speech Clause and general “expressive” principles spanned decades. As discussed earlier, during the World War I era, litigants challenging the Espionage Act and other laws restricting political dissent frequently invoked both the Press Clause and Free Speech Clause (and sometimes the Assembly Clause as well). Although free press and free speech rights would sometimes be mentioned together in published decisions, the Supreme Court did not attempt to distinguish between them in the World War I cases or in other early engagements with the First Amendment. The Court did not develop any freestanding Press Clause jurisprudence, choosing instead to follow the guidance offered by the Free Speech Clause.
As discussed further in Chapter 4, this pattern would continue during subsequent phases of the First Amendment’s development. Thus, during the 1930s and 1940s, Jehovah’s Witnesses invoked the Free Speech Clause, the Press Clause, the Assembly Clause, and the Free Exercise Clause in a legal campaign against state and local restrictions on public proselytizing. However, as we will see, the Hughes Court did not articulate distinctive coverages or doctrines relating to any of these rights. As it had in the World War I cases, the Court preferred to articulate holdings and rationales in Free Speech Clause terms.
Prominent First Amendment commentators may have played an important role in stunting the initial growth and development of the Press Clause. Blackstone wrote in his famous Commentaries that freedom of the press was limited to “laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published.”80 Dean Leonard Levy’s influential work agreed that the early history supported a narrow interpretation of the Press Clause, one that was (p.89) limited to prohibiting licensing and other “prior restraints” on publication.81 At the beginning of the twentieth century, the Supreme Court expressed support for this narrow interpretation.82
The Court never formally adopted Blackstone’s interpretation of the press guarantee. One reason for this might be that some mid-twentieth-century scholarship challenged his and others’ narrow interpretation. For example, Professor Zechariah Chafee suggested that the press guarantee provided at least some degree of protection to already published materials.83 However, even Chafee’s bottom line conclusion, which was shared by other scholars of the era, was that whatever its scope, the Press Clause was essentially interchangeable with the Free Speech Clause—as Chafee put it, the clauses “appear virtually to coincide as legal concepts.”84 Chafee’s interpretation relied, in part, on the work of earlier commentators, who had reached essentially the same conclusion.85
Of course, as Dean Levy and others were quick to point out, the American people were free to adopt other interpretations of these provisions. After all, the First Amendment’s framers and ratifiers did not have occasion to consider the constitutional status of a structured “press” or media enterprise such as existed by the mid-twentieth century. Nor, it appears, did they consider the relationship between free speech and free press. Outside the courts, then, it was possible to develop a social and cultural interpretation of the Press Clause that treated it as granting special status or rights to the institution or members of the press. However, the combination of Supreme Court decisions and Press Clause scholarship created a high bar to formally interpreting the press guarantee as a freestanding, broadly protective provision separate and apart from the Free Speech Clause.
As David Anderson has observed, the Press Clause did enjoy a “heyday” in the Supreme Court during the period from 1930s to the 1960s.86 As noted earlier in the discussion of the Assembly Clause, it was during this period that President Roosevelt publicly touted freedom of the press as an essential constitutional freedom. As well, during the post–World War II era, the United States advocated the adoption of press freedoms in international charters and institutions.87 Relatedly, during this same period, some Supreme Court decisions involving press claims, notably challenges to taxes imposed on the press, relied explicitly on the Press Clause.88 In some later cases involving direct regulations of newspapers and other media entities, the Court similarly relied on the Press Clause without mentioning the Free Speech Clause or freedom of speech.89 The Press Clause was most likely to be explicitly and separately relied upon when government taxed press institutions or directly regulated them.
However, even during the Press Clause’s so-called “heyday,” the Court did not develop any doctrines or principles specific to the Press Clause itself. It did not seem to matter whether the operative clause was the free speech or free press provision, (p.90) since either seemingly would have sufficed as a ground for invalidating the laws under review. As evidence confirming this thesis, after it collapsed the free press and free speech rights in the mid-1970s, the Court retroactively reinterpreted these “Press Clause” cases as resting on free speech principles.90
Moreover, even during the Press Clause’s “heyday,” the Supreme Court began to collapse the Free Speech Clause and Press Clause, for example by referring to “free speech and free press” rights or sometimes simply to “freedom of expression.”91 In New York Times v. Sullivan (1964), the Court’s iconic decision altering state civil libel rules to ensure breathing space for robust criticism of government, free speech and free press were invoked together and interchangeably.92 In the mid-1970s, the Court handed down its last decision based exclusively on the Press Clause. Since then, it has either read the Free Speech Clause broadly enough to cover “press” claims or, when that has not been possible, it has rejected such claims.93
Despite their treatment as interchangeable provisions, subordinating the Press Clause to the Free Speech Clause in this manner was consequential. Freedom of speech generally requires that governments remain neutral with regard to the identity of the speakers it regulates and the content of their speech. This means that claims of “special” rights—of access to governmental proceedings for the institutional press or media, for example—might offend the free speech neutrality principle. Media representatives were themselves somewhat divided with regard to seeking any “special” rights or privileges under the Press Clause. A power to regulate the press, or license it in some way, posed grave dangers for institutions engaged in gathering and reporting news about government.94 Still, some such claims were ultimately presented to the Court, which rejected them and relied instead on the Free Speech Clause.
Why merge the Press Clause with the Free Speech Clause and freedom of “expression” more generally? As noted, the United States had long touted the virtues of a free press, and even encouraged other nations and the international community to adopt free press provisions of their own. Domestically, the collapse of free press into free speech and “expressive” rights came at a time when, politically and culturally speaking, the institutional press was enjoying something of a “heyday” or revival. As the Court was merging the Press Clause and Free Speech Clause, the institutional press was revealing Watergate crimes and publishing exposés on the Vietnam conflict. Newsgathering and investigative journalism were then hailed as a necessary check on corrupt government, and reporters were popular figures in American culture.95
We do not have a comprehensive account of the dynamics that caused the free speech turn with respect to press rights. However, in broad terms, it appears that jurisprudential, intellectual, and cultural influences led to treating the press right as part of the freedom of speech or the more general collection of “expressive” rights.
(p.91) I have already pointed to some the historical and intellectual barriers to treating the Press Clause as a freestanding and distinct guarantee. As with the other “expressive” clauses, we ought not to discount the built-in advantages of the Free Speech Clause. By 1975, when the Supreme Court’s free press jurisprudence finally seemed to be ripening, free speech doctrines were already in place and well-developed.96 By this time, the coverage of the Free Speech Clause had expanded such that it covered most, if not all, conceivable press activities. These included the central functions of gathering information and disseminating it to broad public audiences.97 As was the case with regard to the Assembly Clause, the Free Speech Clause offered a handy and ready-made framework for protecting press rights. Indeed, the Court may have learned that lesson in part as a result of its interaction with the right of peaceable assembly.
To be sure, claimants and commentators were pressing courts to recognize some press rights that were separate and apart from freedom of speech. Invoking the Press Clause, press and media organizations sought special access to government institutions, proceedings, and records. At the same time, commentators such as Jerome Barron, who were concerned about the unequal distribution of media access and power in the United States, were advocating that government impose equal access rights on “the press.”98 These cases and arguments provided opportunities to consider the special meaning of the Press Clause.
However, when it finally took up the central question of whether the Press Clause protected rights distinct from the Free Speech Clause, the Court turned first to some of the First Amendment scholarship discussed earlier. Chief Justice Burger, writing for the Court in an important early case, relied heavily on the work of Professor David Lange.99 Lange conceded that the framing materials did not provide a clear answer to the question, but argued nevertheless that “the freedom of the press evolved as an extension or amplifier of the freedom of speech.”100 Along with other scholars, he claimed that the two clauses were essentially interchangeable.101 The scholarly accounts provided authority for interpreting the Press Clause as an extension of the Free Speech Clause. They also allowed the Court to dispose of the nettlesome special-access and compelled-access questions by rejecting the contention that the Press Clause had anything to say about them on its own terms.
To be sure, the Court was undoubtedly concerned about the difficulties inherent in categorizing or defining something called “the press” for purposes of assigning constitutional rights.102 Does this cover institutional media, individual reporters, pamphleteers, or all of the above? There was also the fact that historical materials suggested not an institutional interpretation, but rather one that included even the lonely pamphleteer as constituting “the press.” In addition, there was a tension (p.92) between defining a special category of “press” and the presumption against governmental licensure of the press.
Still, not everyone was convinced that the Press Clause was essentially interchangeable with the Free Speech Clause. Justice Potter Stewart argued that the Free Speech Clause protected an individual right of expression, while the Press Clause protected the institutional rights of a “Fourth Estate.”103 Stewart’s view also found some favor in constitutional scholarship. For example, Melville Nimmer defended an interpretation of the Press Clause that was quite similar to Justice Stewart’s.104 Nimmer was convinced that the Press Clause and Free Speech Clause could be separated, and that they served related but distinctive functions. However, the “Fourth Estate” and Nimmer interpretations never garnered the support of a majority of the Court.
The Free Speech Clause and “expressive rights” formulations may also have been attractive in a broader intellectual and historical sense. Although Watergate and the conduct of the Vietnam War highlighted the value of investigative journalism, many important “press” cases were decided during a cultural and political era that emphasized individual expressiveness and institutional skepticism.105 These intellectual currents were at odds with recognition of a collective or structural right for an “elite” institutional press, but were consistent with a focus on “expressive” rights that belonged to all. In this sense, too, the Free Speech Clause was a better “fit” with conceptions of individualism and institutional skepticism.106
Further, free speech rights and “expressive” freedoms had served important functions during the civil rights era of the 1950s and 1960s. As discussed in Chapter 5, civil rights advocates had successfully relied on free speech and other “expressive” rights to create breathing space for political dissent and organization. Although rights of press and assembly were also critical to the success of the Civil Rights Movement, freedom of speech was the most prominent right in judicial decisions of this era. Thus, the Court’s treatment of the Press Clause during the mid-1970s was following a familiar constitutional script.
Whether one views it as the path of least resistance or as defensible on the merits, the Supreme Court ultimately adopted the free speech or “expressive rights” interpretation of the Press Clause. However, this does not mean that the press right simply disappeared, as the Assembly Clause appeared to do circa 1980. Although the Court refused to recognize “special” press rights, its published decisions continued to extoll the values of a free and independent press.107 Even though the Court was not willing to recognize freestanding press rights, many legislatures enacted laws shielding the institutional press from campaign finance laws, taxes, and other regulatory requirements. Members of the institutional press also enjoyed special access and other privileges. After the Court refused in Branzburg v. Hayes (1972)108 to (p.93) recognize even a qualified press privilege for reporters’ confidential sources, many states enacted statutory shield laws.109
The judicial and academic treatment of the Press Clause as ancillary to the Free Speech Clause arguably jibes with how Americans view the status of the press freedom and the press itself. To the extent they recognize and can identify First Amendment rights at all (a recent survey indicates only about one in four Americans can name a single First Amendment guarantee, and half of respondents recall freedom of speech), Americans are likely to lump the speech and press guarantees together.110 For a variety of reasons, they are also less likely to trust or revere journalists and the press than Americans were in the 1970s.111 Like the Court, the public still retains a high level of goodwill toward the intrinsic values associated with a free and independent press. But also like the Court, citizens seem to separate those values from the recognition of special or formal rights on behalf of the institutional press or media.
These are the principal dynamics that led the Supreme Court to adopt the view that the Press Clause is merely “complementary to and a natural extension of Speech Clause liberty.”112 Insofar as the Press Clause remains constitutionally enforceable, it is generally as a component of what the Court has referred to as “freedom of expression.”113 However, the relationship between the Press Clause and the Free Speech Clause remains a subject of robust judicial and academic debate. In the Court’s blockbuster campaign finance decision, Citizens United v. FEC (2010), two justices—the late Antonin Scalia and John Paul Stevens—debated whether the Press Clause has force independent of the Free Speech Clause.114 Further, as discussed below, some First Amendment scholars have advocated reviving the Press Clause. Some have offered constitutional definitions of “the press” and argued on behalf of granting press members substantive rights separate and apart from those covered by the Free Speech Clause.115 As these debates and arguments show, the dynamic intersection between the Press Clause and the Free Speech Clause are perpetual and ongoing. It remains to be seen whether these dynamics will ultimately remove the Press Clause from the long shadow of the Free Speech Clause.
The Petition Clause
Like its cousins, the right to petition government for the redress of grievances also has a venerable historical pedigree. Nearly all state constitutions adopted between 1776 and 1780 contained a “petition” provision.116 James Madison’s proposed bill of rights contained a Petition Clause that was textually separate from its free speech, assembly, and press provisions.117
However, despite its historical pedigree and early status, the Petition Clause, like the Assembly Clause and Press Clause, has now been “collapsed into the right of (p.94) free speech and expression.”118 As we have with regard to assembly and press, we will consider the principal dynamic forces that have brought about petition’s subordination to freedom of speech.
As discussed earlier, some nineteenth-century Supreme Court precedents mistakenly linked the rights of assembly and petition. The people enjoyed a right to assemble, the Supreme Court suggested, only for the limited purpose of presenting petitions. The Assembly Clause managed to recover its footing, at least for a time. By contrast, at least as a jurisprudential matter, the Petition Clause never really thrived on its own terms. In the nineteenth century, the Supreme Court sometimes recognized the independent importance of the right to petition (although it was still mentioned along with assembly).119 Further, in some early twentieth-century cases, the right to petition was cited along with other “expressive” rights. Later, the right to petition would make some other cameo appearances in Supreme Court opinions.120
However, by the mid-1980s, Supreme Court precedents focused primarily on the connections between the Petition Clause and other First Amendment rights—particularly the Free Speech Clause. The Court explained in one case that “[t]the right to petition is cut from the same cloth as the other guarantees of [the First Amendment], and is an assurance of a particular freedom of expression.”121 The Court also stated that the Petition Clause and the Free Speech Clause are “subject to the same constitutional analysis.”122 In its most recent consideration of the relationship between the Petition Clause and the Free Speech Clause, the Court observed: “It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground.”123
Thus, by the mid-1980s, just as it had earlier swallowed up the Assembly Clause and Press Clause, the Free Speech Clause had subordinated the Petition Clause too. Petitioning, like associating and publishing information, was considered a means or form of expression covered by the free speech guarantee. Unlike the Assembly Clause, the Petition Clause was never afforded any kind of independent significance. And in contrast to the Press Clause, the Petition Clause never enjoyed a “heyday” in the Supreme Court.
The Petition Clause has received far less attention from constitutional scholars than the Assembly Clause and Press Clause. Seeking to remedy this oversight, Professor Ronald Krotoszynski has published Reclaiming the Petition Clause (2012), in which he provides a comprehensive consideration of the ancient and modern right to petition. Professor Krotoszynski presents both a detailed history and comparative account of petitioning. His book offers some important insights into the special dynamics that led to the Free Speech Clause’s subordination of the Petition Clause.
(p.95) As Professor Krotoszynski observes, petitioning, in the original sense of presenting grievance papers to the U.S. Congress and expecting a formal response, began to fall out of fashion as early as the 1830s. This does not mean that Americans ceased petitioning their governments. Indeed, in terms of public participation, Krotoszynski identifies the period 1844–1919 as the “golden age” of petitioning in the United States.124 However, during that period, the form of petitioning changed markedly. Rather than present specific grievances directly to legislatures, advocates began to organize and present mass public petitions. Mass petitions concerning subjects such as women’s suffrage and the rights of Native Americans were a hybrid form of speech, assembly, and petition activities. As the practice developed, petitioning became a means of amplifying voices and communicating public sentiment on a broad scale. This made petition more akin to a rally or demonstration and less like the traditional written request for a legislative response.
As I emphasized in the Introduction, a constitutional right is a form of both rhetorical and actual power. By altering its basic form, the people themselves actually changed the meaning of the right to petition. Over time, petitioning evolved into a form of rhetorical expression—one not directed to legislators and officials, as in the classic case, but directed to the public at large in search of a response from the masses. As Professor Krotoszynski observes: “Petitioning morphed from a parliamentary practice into a form of mass participatory politics.”125
Unlike assembly and press, this transformation had less to do with broad intellectual currents or shifting jurisprudential fault lines regarding the right to petition than with the public’s own instrumental use of the right. Over time, as it became a form of dialogue, communication, or messaging, petitioning more and more resembled “speech.” In this form, the right to petition fit comfortably within the expanding coverage of the Free Speech Clause and its doctrinal framework which included protection for protests, demonstrations, and other forms of public contention.126 Once again, the Free Speech Clause presented itself as an effective substitute for a neighboring First Amendment right.
Scholars never generated a body of work to counteract or challenge the idea that petition was simply another form of expression. Indeed, outside the context of issues relating to access to courts, very few scholars paid much attention to the Petition Clause. Professor Krotoszynski’s book, which seeks to revive the Petition Clause, swims against a generational tide of politics and jurisprudence that has rendered the Petition Clause “the First Amendment’s poor relation.”127
By the time the Supreme Court was asked to review formal and independent petition claims in the modern era, public practice and academic consensus had essentially positioned the Petition Clause as an historical relic. People did not submit formal petitions anymore, and to the extent citizens wanted to engage in mass petitioning, (p.96) the Free Speech Clause already offered adequate coverage. Thus, judicial decisions concerning the right to petition largely reflected the change in form that had occurred during the “golden age.” Like the assembly and press rights, the petition right was supplanted by the Free Speech Clause.
The dynamics that subordinated the assembly, press, and petition rights to the Free Speech Clause shared some common elements. All were affected by the jurisprudential and intellectual advantages enjoyed by the Free Speech Clause and the freedom of speech. The lack of clear historical or original meaning with regard to any of the “expressive” clauses created an obstacle to treating these rights as substantively distinct and independently enforceable. The Supreme Court’s penchant for eliding the possible differences in coverage, its seemingly cavalier attitude toward the text of the First Amendment, and its preference for free speech doctrines and principles, also contributed to the aggregation of the generic “expression” right.
However, there were important differences in the dynamic intersection between the Free Speech Clause and its three neighbors. The Assembly Clause was first mistakenly appended to the Petition Clause, an interpretive error the Court never officially corrected. The morphing of assembly into association, and then into expressive association, occurred despite efforts to popularize the assembly right in political discourse and its continued exercise by the people in various movements and private groups. As Professor Inazu observes, political and intellectual influences played a significant role in the transformation of the assembly right into one of voice or expressive association.
The Press Clause experienced some unique judicial dynamics. Free press and free speech had long been used interchangeably, including during the framing era. The Supreme Court continued this trend, essentially from the moment it encountered the free speech and press rights together in the World War I cases. Despite its “heyday” in the courts and critical historical moments such as Watergate and the Vietnam War, the Press Clause never broke free of the magnetic pull of the Free Speech Clause. Pragmatic concerns, including the difficulty of defining “the press” and difficulties relating to assigning such an entity special rights, also posed a significant deterrent in terms of disaggregating free press and free speech rights. Ultimately, the Court’s treatment of the Press Clause tracked the public’s apparent sense of the value of a free press. The Court, like the public at large, acknowledged the values inherent in having a free and independent press, but balked at recognizing any special rights for such an elite institution. Thus, the press right was subsumed (p.97) into the free speech right not primarily based upon intellectual or political forces (legislatures were, after all, willing to enact press protections), but based upon the seemingly intractable practical difficulties with allowing the press right to stand on its own bottom.
Finally, the Petition Clause’s relationship with the Free Speech Clause was driven in part by the judicial and intellectual dynamics that affected the assembly and press rights. But it was primarily the people’s own use and adaptation of the petition right that sealed its fate. The morphing of petition during its “golden age,” from the presentation of individual grievances to a form of mass politics, created a close and irresistible resemblance between petition and speech. Thus, modern-day petitioning closely resembled some of the essential forms and functions of the free speech right—to engage in mass politics and public contention, through demonstrations and protest against government, for the purpose of presenting grievances.
These dynamics show that interactions between the Free Speech Clause and non-speech neighboring rights share some commonalities but also exhibit important differences. The differences, in particular, are relevant to any project whose purpose it is to reconsider, recover, or rescue these particular rights from the vortex of the Free Speech Clause. Understanding these dynamics also informs the prospects for reconsidering the “Free Expression Clause” more generally, including the chances that its elements can be reconstituted as cognate and mutually reinforcing rights provisions.
Reconsidering the “Free Expression Clause”
The Free Speech Clause has had a profound effect on its First Amendment non-speech neighbors. It has largely supplanted the Assembly Clause, Press Clause, and Petition Clause. Free speech doctrines, principles, and theories now govern claims under these seemingly distinctive provisions. The nature of this relationship has also significantly affected the Free Speech Clause. As it has absorbed the activities of association, newsgathering and distribution, and presenting grievances to government officials, the Free Speech Clause has expanded in terms of coverage, function, and status. Further, it comes as little surprise that when asked about First Amendment rights, Americans recall the Free Speech Clause more readily than any of its cognate cousins. The “Free Expression Clause” is the generic product of Free Speech Clause expansionism. The question is whether this generic clause can be disaggregated, and then recombined to produce a pluralistic First Amendment consisting of cognate and mutually facilitative rights.
As discussed, “freedom of expression” has long been part of the constitutional lexicon. The expansion of the Free Speech Clause into areas of press, assembly/association, (p.98) and petition has undeniably secured valuable coverage and protection for a wide variety of expressive activities. However, stretching the Free Speech Clause and freedom of speech to cover everything contemplated by three other seemingly independent provisions has placed considerable stress on Free Speech Clause’s text, doctrines, and principles. Activities that appear, both textually and conceptually, to be covered by the press, assembly, or petition provisions have been shoehorned into a single provision covering “the freedom of speech.” Free speech doctrines relating to things such as symbolic conduct, content-neutrality, and the public forum may not address, or may awkwardly cover, the core harms of restrictions on assembly, press, or petition activities.128 Further, as discussed below, treating everything relating to communication as a free speech concern can also confuse or complicate free speech doctrines.129
These concerns are separate and apart from the obvious textual problems associated with collapsing four different rights into one singular “expressive” guarantee. The words of the Constitution matter. Whether the question relates to the meaning of what constitutes a “search” under the Fourth Amendment, or the scope of Congress’s power under the commerce clause to regulate “commerce” that takes place “among the states,” interpreters seek to give effect to the words of the Constitution. The “Free Expression Clause” treats the Assembly Clause, Press Clause, and Petition Clause as constitutional redundancies. This violates a fundamental canon of constitutional interpretation.130
Two things need to happen if the individual rights in the First Amendment are to be given appropriate recognition and meaningful independent enforcement. The first is that the “Free Expression Clause” must be disaggregated, such that each individual clause is recognized as independently meaningful and not merely part of an undifferentiated mass of “expression.” The second is that, once properly disaggregated, these rights need to be reconnected to one another as “cognate” and complementary provisions.
Disaggregating the “Free Expression Clause”
Recent scholarship has advocated for the recovery or reclaiming of the Assembly Clause, Press Clause, and Petition Clause.131 Groups, particularly dissenting and marginalized associations, are under sustained pressure to conform to equality and other legal principles. Owing to attacks by elected officials as well as cultural and economic pressures, the notion of a free and independent press has never seemed more vulnerable. And the peoples’ access to elected representatives has increasingly been limited in ways that create political strife and alienation.
Thus, Professor Inazu argues that we must “look past association and recover assembly.”132 As he explains, a recovered Assembly Clause, one rooted in the long (p.99) tradition of organizing and joining, would offer more robust protections for a diversity of expressive and non-expressive groups—dissenting, political, and expressive. To accomplish these ends, Inazu argues, we need a freestanding right of assembly—one unencumbered by the Free Speech Clause’s message-based framework.133 Inazu proposes a distinct conception of the assembly right, and defends it on textual, theoretical, and pragmatic grounds.
Professor Sonja West and other scholars have similarly objected to the Press Clause’s treatment as a constitutional redundancy.134 West argues that the Press Clause protects the unique non-speech functions of checking government and gathering and conveying information to the public about newsworthy matters.135 Professor Randall Bezanson similarly contends that the press “should be understood as more than a technology, more than just another voice.”136
These scholars differ with regard to how exactly the Press Clause ought to be revived or recovered, and the extent to which this is possible. Professor West argues that the Supreme Court was simply wrong to give up on defining an institutional press that merits special or distinctive treatment.137 Professor Bezanson similarly believes “the press” refers to a distinctive (although not necessarily an institutional) form, but is skeptical of claims for special newsgathering or other rights for the press.138
To be sure, scholars contending for an institutional definition of the press are swimming upstream, against a current of scholarship and jurisprudence that is skeptical of the notion that “the press” can or should be defined in this manner.139 But those skeptical of transformative interpretive change need look no further than the recent revival of the Second Amendment, which was on life support for most of American history until the Supreme Court breathed new life into it. Recent scholarship on the Press Clause is part of the dynamic process by which the relationships between and among constitutional rights can change over time. As new pressures and challenges to a free and independent press materialize, scholars and courts may begin to reconsider the extent to which the Press Clause ought to be deemed coterminous with the Free Speech Clause.
Finally, Ronald Krotoszynski contends that we ought to “reclaim” the Petition Clause.140 Krotoszynski proposes that the modern right to petition be defined in such a way that it protects “some sort of access to the government and its officers, coupled with a presumption against punishment for those who seek to exercise this right of access.”141 Professor Krotoszynski does not contend that the Petition Clause is wholly unrelated to the Free Speech Clause. Thus, he recognizes that petitioning activity is often “conjoined with the exercise of other forms of expressive freedom, including speech, assembly, and association.”142 However, he proposes a separate doctrine or jurisprudence for the Petition Clause, one that defines “petition” broadly, (p.100) provides for a presumption of access to government officials for certain kinds of petition activity, and protects petitioners from being punished for criticizing government.143 Krotoszynski does not propose that we return the right of petition to its original form. Rather, leveraging the dynamics that transformed petition into a form of mass politics, he proposes a special set of rules to govern modern retail and mass petition activities.
Disaggregation through recovery or revival would produce some significant benefits. For instance, Professor Inazu’s conception of the reinvigorated assembly right would protect a broader range of noncommercial, non-expressive groups than the right of “expressive association.” It would also draw attention to the pre-expressive aspects of assembly, including activities relating to group formation, which have received diminished First Amendment protection in cases such as Christian Legal Society v. Martinez. Inazu’s recovered assembly right may also clarify or bring more appropriate balance to the intersection between anti-discrimination laws and the rights of groups to determine their own makeup and membership.
With regard to press rights, a revival of efforts to define the press and extend special access and other newsgathering rights to it would place the rights of a free and independent press on more solid constitutional footing. As discussed, currently the press enjoys only the generic free speech rights that other newsgatherers and speakers have. Even placing the issue of independent constitutional status on the table serves to remind various constituencies—the courts, government officials, and the public—that there is a separate Press Clause in the First Amendment.144 Reconsidering press rights could lead to more robust rights for newsgathering and, what may be just as critical today, constitutional immunities from governmental demands for information. As Professor Bezanson observes, formally recognizing such rights would not necessarily require that courts adopt a narrow, corporate, institutional conception of “the press.”145
Disaggregation of free press and free speech rights can also lead to analytical clarity. This is so even if one accepts the view that the press freedom extends to anyone who publishes information to the general public.146 For example, Professor Michael McConnell argues that the Supreme Court’s much-discussed (and, in some quarters, much maligned) decision in Citizens United v. FEC (2010) was wrongly decided under the Free Speech Clause. He argues that the decision, which invalidated a provision of federal election law that banned corporations and labor unions from spending their own funds to broadcast viewpoints about candidates, directly implicated the Press Clause and ought to have been decided on that basis.147 Deciding the case on Press Clause grounds, McConnell contends, would have (1) obviated the need to decide whether corporations are entitled to First Amendment rights; (2) clarified the Court’s analytical approach, under the First Amendment, to (p.101) campaign contributions and expenditures; and (3) rendered unnecessary the adoption of a rule that treats all speaker-based distinctions as constitutionally suspect.148 In short, deciding Citizens United as a Press Clause case rather than a Free Speech Clause case would have had the dual virtues of reviving the former and avoiding further analytical complications relating to the latter. Reviving the Press Clause does not have to entail recognizing special rights. As McConnell demonstrates, disaggregating free press and free speech can produce analytical clarity and other non-institutional benefits.
Finally, as Professor Krotoszynski argues in his book, developing a separate petition doctrine could facilitate citizen access to government officials in ways current Free Speech Clause doctrine cannot or will not accomplish. Thus, under current doctrine governments can effectively silence some speakers by displacing them. A petition right that focuses on access to officials may provide a substantive right of access not covered under the Free Speech Clause. More generally, Krotoszynski contends that a reclaimed petition right would provide broader protection, in a variety of contexts, for what he calls “petitioning speech.”149 Some of this coverage would arise under the Petition Clause itself, while other aspects would arise from a combination of independent but mutually reinforcing petition, speech, and assembly rights.
First Amendment Pluralism
Professor Krotoszynski’s observation regarding the potential combination of First Amendment rights raises the prospect of reconnecting independent speech, assembly, press and petition rights as “cognate” or mutually reinforcing provisions.150 Thus, the first step is to revive or recover versions of the Assembly Clause, Press Clause, and Petition Clause that are not subordinate to the Free Speech Clause. The next step is to reconstitute these rights as facets of a pluralistic First Amendment that treats them as discrete, but synergistically related, provisions.
Interpreting speech, assembly, press, and petition freedoms as cognate provisions better reflects the text and contemporary exercise of First Amendment rights than does the generic “expressive rights” interpretation. The First Amendment does not codify “expressive” rights, but rather separate rights provisions with presumptively distinctive coverages and functions. Constitutional and political movements have relied on the combination of all of the First Amendment’s rights, not just the Free Speech Clause. As Professor Krotoszynski suggests, most forms of public contention involve not merely speech, but also separate elements of assembly and petition as well. Further, as Professor Inazu has demonstrated, many groups form for reasons other than communicating ideas and viewpoints to the public.
(p.102) With regard to speech, assembly, press, and petition, Professor Ashutosh Bhagwat argues that “these rights usually operate in combination with one another, and are much more effective in combination as well.”151 He observes:
Speech is the lifeblood of associations, because the formation and activities of associations require speech. Group petitioning is fundamentally linked to assembly, since before the advent of mass, electronic communication, assemblies were the only means to create such petitions. Speech is greatly enhanced by association and assembly, because speech on behalf of large groups of citizens is far more likely to influence others (including public officials) than that of individuals acting alone.152
Professor Bhagwat articulates the central premise of what I refer to as “First Amendment Pluralism”—that speech, assembly, press, and petition rights are independent, cognate, and mutually facilitative. As discussed in Chapter 8, First Amendment Pluralism is part of a broader conception of “Rights Pluralism,” which focuses on the dual necessity of maintaining conceptual and enforcement space between constitutional rights while also leveraging their valuable synergies.
A pluralistic First Amendment, like a pluralistic system of constitutional rights more generally, is not merely a theoretical conception. First Amendment Pluralism would require that governments defend their actions against separate and independently enforceable free speech, assembly, press, and petition claims. First Amendment Pluralism would also strengthen and fortify both free speech and neighboring non-speech rights, in the manners suggested by Professor Bhagwat.
The framers and adopters of the First Amendment understood that constitutional liberty requires a multitude of checks, balances, and rights. We can no more entrust that liberty to a single check—that is, separation of powers, federalism, bicameralism—than we can make it dependent on one or even a few rights provisions. To ensure effective democratic participation, protection of minority groups and viewpoints, access to governmental decision-makers, and other democratic ends, each of the First Amendment’s rights provisions must be independently recognized and enforced. Once they are effectively disaggregated, we can pursue and develop their cognate capacities.
As discussed, the Supreme Court’s approach has been to collapse speech, assembly, press, and petition rights into a single conception of “expressive” rights. Some prominent free speech theorists, including Alexander Meiklejohn, Robert Post, and Cass Sunstein, have also focused their energies on “expressive” rights and the Free Speech Clause. Leading theoretical accounts thus have generally elided assembly, (p.103) press, and petition rights, even though they are every bit as critical to self-governance and the search for truth as the free speech guarantee.153
More recently, scholars have started to correct this course. For example, Professor Bhagwat argues that it is not enough to rescue or recover the First Amendment’s subordinated clauses. We must also, he contends, recognize that freedoms of speech, assembly, press, and petition serve collective democratic purposes and functions.154 Bhagwat posits that separately and in combination, these First Amendment rights suggest a concept of citizenship that emphasizes active participation in democratic processes. From this perspective, in order to engage effectively in activities such as political debate, protest, and voting, citizens need to be able to invoke and exercise independent and mutually reinforcing speech, assembly, press, and petition rights.
Professor Inazu has also advanced a version or conception of First Amendment Pluralism. He focuses on a somewhat different combination of rights—speech, assembly, press, and free exercise of religion.155 As Inazu observes, the Supreme Court has occasionally recognized that these rights are connected to one another. For instance, the Court has recognized that the rights all merit a “preferred” constitutional status. Inazu argues that this combination of rights once protected “a pluralistic civil society that tolerated genuine disagreement and shielded private groups from the imposition of majoritarian norms.”156 In part owing to the dominance of the Free Speech Clause, Inazu contends, First Amendment rights no longer operate as complementary checks on the imposition of majority norms.157 Professor Inazu is particularly concerned about the effects that Free Speech Clause expansionism has had on religious groups, which frequently adopt positions contrary to majority norms, but his pluralistic conception, like Bhagwat’s, also has broader implications.
As these scholars have observed, we need to understand that no matter how much ground the Free Speech Clause can cover, facilitating citizens’ participation in democratic processes and protecting them from governmental overreach will require the recognition and enforcement of the full complement of First Amendment rights. Thus, non-expressive assemblies, non-speech press functions, and the peoples’ need to reach increasingly distant and inaccessible public officials all necessitate a more pluralist version of the First Amendment.
As Professor Inazu observes with regard to First Amendment dynamics, “[t]here is no nefarious force behind the loss of [First Amendment Pluralism]—it developed through a series of reactions and counter-reactions to cases, statutes, and social movements.”158 As a result of the dynamic processes of change and interpretation discussed earlier, we are left with a leading Free Speech Clause and a supporting cast of neighboring First Amendment rights.
(p.104) One of the things Rights Dynamism demonstrates is that this understanding is not final or set in stone. Scholars have made significant contributions in terms of challenging the subordination of assembly, press, and petition rights. They have presented facts, histories, and theories that, if accepted, could lead to the recovery or revival of these rights. Their work is part of the perpetual process in which rights intersect, and through which they are constantly interpreted and reinterpreted. What remains to be seen is whether the combination of legal, intellectual, political, and social forces can alter current interpretations of First Amendment rights and, as importantly, their relation to one another.
(1.) Michael W. McConnell, “Reconsidering Citizens United as a Press Clause Case,” 123 Yale L.J. 412, 416 (2013).
(2.) See, e.g., John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale Univ. Press, 2012); Ronald J. Krotoszynski, Jr., Reclaiming the Petition Clause: Seditious Libel, “Offensive” Protest, and the Right to Petition the Government for a Redress of Grievances (Yale Univ. Press, 2012).
(3.) See, e.g., Zechariah Chafee, “Book Review,” 62 Harv. L. Rev. 891, 898 (1949); Thomas Emerson, “Colonial Intentions and Current Realities of the First Amendment,” 125 U. Pa. L. Rev. 737 (1977).
(4.) See generally Jud Campbell, “Natural Rights and the First Amendment,” 127 Yale L.J. 246 (2017) (concluding, based on natural law understandings, that freedom of speech and freedom of press comprised distinctive guarantees).
(5.) See David A. Anderson, “The Origins of the Press Clause,” 30 UCLA L. Rev. 455, 465 (1983) (observing that of the early state constitutions, only Pennsylvania’s contained a free speech provision).
(6.) See id. at 473.
(7.) See Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 5–6 (Harvard Univ. Press, 1960).
(8.) Anderson, supra note 5, at 533.
(9.) Levy, supra note 7, at 5.
(10.) Sonja R. West, “Awakening the Press Clause,” 58 UCLA L. Rev. 1025, 1038 (2011) (footnotes omitted).
(11.) See Melville Nimmer, “Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?”, 26 Hastings L.J. 639, 640 (1975).
(12.) See Campbell, supra note 4.
(14.) See Inazu, supra note 2, at 21–35 (tracing the early history of the constitutional right to peaceably assemble).
(15.) See Krotoszynski, supra note 2, at 153 (“the right to petition for redress of grievances predates both the derivative rights of speech and assembly; it once held an importance that equaled, if not exceeded them, and retained that status for well over a hundred years after giving birth to the secondary freedoms of speech and press”).
(16.) Anderson, supra note 5, at 478.
(17.) Id. at 474.
(18.) Id. at 484.
(19.) See id. at 488 (“[T]he notion of an interrelated complex of protections for thought, belief, and expression, is a modern concept. To impose it retrospectively on the framers is anachronistic. . . . The Framers began not with a general theory of intellectual freedom, but with specific solutions to concrete grievances.”).
(20.) See Akhil Amar, The Bill of Rights: Creation and Reconstruction 20–26 (Yale Univ. Press, 1998) (discussing free speech and free press); id. at 26–32 (discussing assembly and petition).
(21.) See id. at 223–24.
(22.) Anderson, supra note 5, at 509.
(23.) Levy, supra note 7, at 214–15 (“freedom of the press was everywhere a grand topic for declamation”).
(24.) Amar, supra note 20, at 237.
(26.) See id. at 244–46.
(27.) Ashutosh Bhagwat, “The Democratic First Amendment,” 110 Nw. L. Rev. 1097, 1098–99 (2016) (emphasis added).
(28.) As discussed below, scholars have offered separate accounts of the history and current understandings of the Assembly Clause, Press Clause, and Petition Clause. However, these studies do not holistically or comparatively consider the dynamics that produced the “Free Expression Clause.” This chapter synthesizes accounts of individual clauses and seeks to explain how the First Amendment’s suite of “expressive” rights intersect and relate.
(29.) An early example is Thomas I. Emerson, “Toward a General Theory of the First Amendment,” 72 Yale L.J. 877, 878 (1963) (“The fundamental purpose of the first amendment was to guarantee the maintenance of an effective system of free expression.”).
(30.) See, e.g., Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616 (1919).
(31.) See Schenck, 249 U.S. at 52 (“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”).
(32.) See John Stuart Mill, On Liberty (John W. Parker & Son, 1859); John Milton, Aeropaegetica (The Grolier Club, 1890).
(33.) E.g., Abrams, 250 U.S. at 619 (referring to “freedom of speech and of the press”).
(34.) Id. at 627 (Holmes, J., dissenting).
(36.) Id. at 630.
(37.) Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). See Inazu, supra note 2, at 50 (discussing the influence of assembly in Brandeis’s concurrence).
(38.) See Whitney, 274 U.S. at 376 (“To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.”); id. at 376 (“But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.”); id. at 377 (“no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”); id. at 378 (“The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression.”).
(39.) See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (referring to Brandeis’s Whitney concurrence as the “classic formulation” of free speech principles); H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics 194 (Univ. of Chicago Press, 2002).
(40.) Sullivan, 376 U.S. at 270.
(41.) See generally Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (Harper, 1960) (discussing the relationship between free speech and self-government).
(42.) See generally Thomas I. Emerson, The System of Freedom of Expression (Vintage Books, 1971).
(43.) Bradley C. Bobertz, “The Brandeis Gambit: The Making of America’s ‘First Freedom,’ 1909–1931,” 40 Wm. & Mary L. Rev. 557, 560 (1999).
(44.) Inazu, supra note 2.
(45.) See United States v. Cruikshank, 92 U.S. 542, 552 (1875); Presser v. Illinois, 116 U.S. 252, 267 (1886).
(46.) See Jason Mazzone, “Freedom’s Associations,” 77 Wash. L. Rev. 639, 712–13 (2002).
(47.) See Inazu, supra note 2, at 22–25.
(48.) See id. at 40-44 (discussing state court decisions, treatises, and other sources that adopted a broader definition of assembly).
(49.) Id. at 50.
(50.) See id. at 57–59.
(51.) Id. at 61.
(53.) See generally id., chs. 3, 4.
(54.) Id. at 63.
(55.) DeJonge v. Oregon, 299 U.S. 353, 364 (1937).
(56.) 357 U.S. 449 (1968).
(57.) Id. at 460.
(58.) See Inazu, supra note 2, at 81–82.
(59.) See id. at 85.
(60.) Id. at 87–88.
(61.) See id. at 94–96.
(62.) Id. at 96.
(63.) Id. at 97.
(64.) Id. at 115–16 (discussing intellectual influences on legal culture).
(65.) See id. at 119–24.
(66.) Runyon v. McCrary, 427 U.S. 160, 168 (1976).
(67.) Id. at 176.
(68.) See Griswold v. Connecticut, 381 U.S. 479, 483 (1965).
(69.) Inazu, supra note 2, at 132.
(70.) 468 U.S. 609, 617–18 (1984).
(71.) Id. at 627.
(72.) Id. at 623.
(73.) New York State Club Ass’n v. City of New York, 487 U.S. 1, 13 (1988).
(74.) Christian Legal Soc’y v. Martinez, 561 U.S. 661 (2011).
(75.) See, e.g., Timothy Zick, “Recovering the Assembly Clause,” 91 Tex. L. Rev. 375, 398 (2012) (“Assembly is protected in its own right; it stands on its own bottom.”).
(76.) See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496–97 (1975). Even in Cohn, the Court referred at times to “freedom of expression” or “the First Amendment” in a more generic sense.
(77.) See C. Edwin Baker, “The Independent Significance of the Press Clause under Existing Law,” 35 Hofstra L. Rev. 955, 956 (2007) (“The Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on abridging freedom of speech.”). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (invalidating trial court closure order on grounds that public and press have a right to attend trial proceedings).
(78.) See, e.g., David Lange, “The Speech and Press Clauses,” 23 UCLA L. Rev. 77, 88–90, 92–96 (1975) (discussing colonists’ conceptual understanding of free speech and free press).
(79.) David A. Anderson, “Freedom of the Press,” 80 Tex. L. Rev. 429, 430 (2002).
(80.) 4 W. Blackstone, Commentaries on the Laws of England 151–52 (Oxford, 1769).
(81.) See Leonard Levy, Freedom of the Press from Zenger to Jefferson lv–lvi (Bobbs-Merrill Co., 1966); Levy, Legacy of Suppression, supra note 7.
(82.) See Patterson v. Colorado, 205 U.S. 454 (1907) (suggesting that First Amendment protection was limited to invalidating prior restraints).
(83.) 1 Zechariah Chafee, Jr., Government and Mass Communication (Univ. of Chicago Press, 1947).
(84.) Id. at 34
(85.) See 2 Thomas M. Cooley, Constitutional Limitations 883–86, 937–44 (Little, Brown & Co., 8th ed. 1927); Robert McCormick, The Freedom of the Press 1 (D. Appleton-Century, 1936).
(86.) Anderson, supra note 79, at 448.
(87.) See, e.g., Zechariah Chafee, Three Human Rights in the Constitution of 1787 (University of Kansas Press, 1956). Professor Chafee led a U.S. delegation to the United Nations that advocated for, among other things, the adoption of free speech and press rights.
(88.) E.g., Grosjean v. Am. Press Co., 297 U.S. 233, 251 (1936).
(89.) See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
(90.) See Leathers v. Medlock, 499 U.S. 439, 447 (1991) (interpreting press taxation cases as based on free speech principles).
(91.) See, e.g., Time, Inc. v. Hill, 385 U.S. 374 (1967) (analyzing judgment against magazine as abridgment of the rights of free speech and press).
(92.) See Sullivan, 376 U.S. at 256 (“We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State’s power to award damages in a libel action brought by a public official against critics of his official conduct.”). The Supreme Court used some version of the formulation “freedoms of speech and press” throughout its opinion. See, e.g., id. at 265.
(93.) See David A. Anderson, “Freedom of the Press in Wartime,” 77 U. Colo. L. Rev. 49, 73 (2006).
(94.) See RonNell Anderson Jones, “The Dangers of Press Clause Dicta,” 48 Ga. L. Rev. 705, 718–19 (2014).
(95.) See David A. Yalof & Mark Kenneth Dautrich, The First Amendment and the Media in the Court of Public Opinion 10 (Cambridge Univ. Press, 2002).
(96.) West, supra note 10, at 1036.
(97.) See id. at 1028 (“Because the freedoms to publish and to disseminate speech are also protected by the Free Speech Clause, the Press Clause has been left with nothing to do.”).
(98.) See, e.g., Jerome Barron, “Access to the Press—A New First Amendment Right,” 80 Harv. L. Rev. 1641 (1967); David Lange, “The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment,” 52 N.C. L. Rev. 1 (1973).
(99.) See Belotti, 435 U.S. 765, 799–800.
(100.) David Lange, “The Speech and Press Clauses,” 23 UCLA L. Rev. 77, 88 (1975).
(102.) See, e.g., Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (observing that defining the press for purposes of evidentiary privileges “would present practical and conceptual difficulties of a high order”).
(103.) Address by Mr. Justice Stewart, Yale Law School Sesquicentennial Convocation, November 2, 1974, reprinted in Stewart, “Or of the Press,” 26 Hastings L.J. 631 (1975).
(104.) Melville Nimmer, “Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?,” 26 Hastings L.J. 639 (1975).
(105.) See generally Bruce J. Schulman, The Seventies: The Great Shift in American Culture, Society, and Politics (Da Capo Press, 2002).
(106.) As Sonja West has noted, “[t]he justices’ understandable desire to avoid favoring an elite group has led them to allow the Speech Clause to swallow the Press Clause.” West, supra note 10, at 1031.
(107.) As RonNell Jones has observed, the Court’s rhetoric concerning the democratic values of press freedom is “one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century.” Jones, supra note 94, at 707. See, e.g., Leathers v. Medlock, 499 U.S. 439, 447 (1991) (“The press plays a unique role as a check on government abuse.”); Mills v. Alabama, 384 U.S. 214, 219 (1966) (“The Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs.”).
(108.) 408 U.S. 665 (1972).
(109.) See Mary-Rose Papandrea, “Citizen Journalism and the Reporter’s Privilege,” 91 Minn. L. Rev. 515, 546 & nn.175, 176 (2007) (collecting statutory citations).
(110.) See Annenberg Public Policy Center, University of Pennsylvania, “Americans Are Poorly Informed about Basic Constitutional Provisions,” https://www.annenbergpublicpolicycenter.org/americans-are-poorly-informed-about-basic-constitutional-provisions?utm_ (p.273) source=news-release&utm_medium=email&utm_campaign=2017_civics_survey&utm_term=survey&utm_source=Media&utm_campaign=e5f213892a-Civics_survey_2017_2017_09_12&utm_medium=email&utm_term=0_9e3d9bcd8a-e5f213892a-425997897 (Sept. 12, 2017) (last visited Oct. 13, 2017). See also Elisabeth Zoller, “The United States Supreme Court and the Freedom of Expression,” 84 Ind. L.J. 885, 886 (2009) (observing that “freedom of expression” is frequently used by the Court because “[f]reedom of speech and freedom of the press are so united in American culture today that, in practice, the Court makes almost no distinction between the two”).
(111.) See Yalof & Dautrich, supra note 95, at 11–19 (explaining the decline in media trust after 1970).
(112.) First Nat’l Bank v. Bellotti, 435 U.S. 765, 800 (1978) (Burger, J., concurring).
(113.) See Elizabeth Zoller, “The United States Supreme Court and the Freedom of Expression,” 84 Ind. L.J. 885, 886 (2009).
(114.) See Citizens United v. FEC, 558 U.S. 310, 431 (2010) (Stevens, J., concurring) (challenging Justice Scalia’s claim that the Press Clause does not support special treatment for corporate media).
(115.) See, e.g., West, supra note 10.
(116.) Id. at 109.
(118.) Stephen H. Higginson, “A Short History of the Right to Petition Government for a Redress of Grievances,” 96 Yale L.J. 142, 142 (1986).
(119.) See United States v. Cruikshank, 92 U.S. 542, 552 (1876) (“The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”).
(120.) See, e.g., Adderley v. Florida, 385 U.S. 39, 52 (1966) (Douglas, J., dissenting) (“We do violence to the First Amendment when we permit this ‘petition for redress of grievances’ to be turned into a trespass action . . .”).
(121.) McDonald v. Smith, 472 U.S. 479, 482 (1985).
(122.) Wayte v. United States, 470 U.S. 598, 610 n.11 (1985).
(123.) Borough of Duryea v. Guarnieri, 564 U.S. 379, 388 (2011).
(124.) Krotosyynski, supra note 2, at 121.
(125.) Id. at 127.
(126.) See Cox v. Louisiana, 379 U.S. 536, 545 (1965) (invalidating conviction of leader of civil rights group arising from public protest); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569–70 (1995) (concluding that parade was expressive).
(127.) Gary Lawson & Guy Seidman, “Downsizing the Right to Petition,” 93 Nw. L. Rev. 739, 739 (1999).
(128.) See, e.g., Frederick Schauer, “Principles, Institutions, and the First Amendment,” 112 Harv. L. Rev. 84, 88–91 (1998) (critiquing analytical structure of press cases decided under free speech doctrines).
(129.) See, e.g., McConnell, supra note 1.
(130.) See, e.g., Randall P. Bezanson, “Whither Freedom of the Press?,” 97 Iowa L. Rev. 1259, 1261 (2012) (“[T]o an interpreter of the Constitution, it is awkward to read the free press guarantee out of the First Amendment.”).
(131.) See Inazu, supra note 2 (assembly); West, supra note 10 (press); Krotoszynski, supra note 2 (petition).
(132.) Inazu, supra note 2, at 150.
(133.) See id. at 2–4 (critiquing “expressive association” and advocating an alternative right of assembly).
(134.) See West, supra note 10, at 1033–41. See also Bezanson, supra note 130, at 1273 (“We need a guarantee of freedom of the press distinct from freedom of speech.”).
(135.) West, supra note 10, at 1069–70.
(136.) Bezanson, supra note 130, at 1273.
(137.) West, supra note 10, at 1056–70 (defining and defending a narrow definition of “the press”).
(138.) Bezanson, supra note 130, at 1273.
(139.) See, e.g., Eugene Volokh, “Freedom of the Press as an Industry, or for the Press as a Technology? From the Framing to Today,” 160 U. Penn. L. Rev. 459, 538–39 (2012) (arguing that the Press Clause has been understood throughout American history to guarantee “equal treatment to [all] speakers without regard to whether they are members of the press-as-industry”).
(140.) Krotoszynski, supra note 2.
(141.) Id. at 155.
(142.) Id. at 166.
(143.) Id. at 162–73.
(144.) See RonNell Anderson Jones & Sonja West, “The Fragility of the Free American Press,” 112 Nw. Univ. L. Rev. 567, 572–84 (2017) (discussing the various “pillars” that protect freedom of the press).
(145.) See Bezanson, supra note 130, at 1262–63 (“Indeed, I know of no scholar of the First Amendment and press freedom who has taken the view that the press consists only of an ‘institutional’ character, and certainly not only a corporation formally so designated.”).
(146.) McConnell, supra note 1, at 416.
(147.) See id. (“But the most important flaw . . . was to analyze the case under the wrong clause of the First Amendment.”).
(148.) Id. at 416–17, 419.
(149.) See Krotoszynski, supra note 2, at 156 (“[T]he Petition Clause should secure a baseline right of access to a particular intended audience, access that the other First Amendment expressive freedom guarantees have thus far failed to provide.”).
(150.) This is, incidentally, how the Supreme Court used to describe these rights. See De Jonge v. Oregon, 299 U.S. 353, 365–66 (1937). See also Thomas v. Collins, 323 U.S. 516, 530 (1945).
(151.) Bhagwat, supra note 27, at 1118.
(153.) Id. at 1113.
(154.) Professor Bhagwat sets the Free Exercise Clause to one side, on the ground that the history suggests a different role for religious freedom. I discuss the intersection between the Free Speech Clause and the Free Exercise Clause in Chapter 4.
(155.) John D. Inazu, “The Four Freedoms and the Future of Religious Liberty,” 92 N.C. L. Rev. 787, 788 (2014).
(157.) As Professor Inazu notes, there is also serious confusion over how each of the First Amendment rights ought to be analyzed separately—giving rise, as he observes, to “the worst of both worlds.” See id. at 808.
(158.) Id. at 809.