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The Right to Assembly

Judge Andrew P. Napolitano on

Last week, the Supreme Court effectively abolished the right to assembly in three Southern states. By refusing to hear an appeal of a speaker accused of being liable for what a protester did in an audience the speaker addressed, the court exposed all protest organizers and speakers to potentially ruinous financial penalties for what unknown persons have done.

Here is the backstory.

The right to taunt the tyrant -- whether the tyrant be a king or a president or local police -- is among the natural rights of expression integral to all persons. Your rights to think as you wish, to say what you think, to read what you choose, to publish what you say, and to do this alone or in concert with others -- without a government permission slip or fear of government reprisal -- are natural human rights possessed by all persons above the age of reason.

Expressing oneself in concert with others is also a constitutional right, as the First Amendment expressly prohibits Congress from making any law infringing upon it. From and after the ratification of the 14th Amendment, the congressional prohibition applies to all branches of government -- legislative, executive and judicial -- and to all levels of government -- local, state and federal.

The companion right is the right to petition the government for a redress of grievances. What once were written petitions have today become mass demonstrations, at which folks articulate their antipathy to government or cultural trends, expecting extensive media coverage and hoping that their views will resonate with the public at large and bring about the change they seek or at least a general awareness of the grievances that vex them.

This right is as old as America. It began in pubs in the 1770s in Boston, New York, Princeton, Philadelphia, Baltimore and Charleston, where revolutionaries met to complain about oppression by the British. These meetings produced county, regional and statewide gatherings that adopted early local versions of the Declaration of Independence, which itself was adopted unanimously by the Continental Congress in July 1776.

 

The right to assemble in public and complain about the government is so well-rooted in American history that it is hard to imagine our secession from Britain coming about without it. The colonists accepted it as normal and natural and when they gathered to shake their fists in the tyrant's face -- metaphorically of course, as George III was 3,000 miles away -- they did so without fear of retribution.

Until now.

Now, if you organize, foment or even speak at a gathering in Louisiana, Mississippi or Texas, and some unknown person in the audience -- at a time unknown, in a manner unknown and even unseen -- harms another unnamed person nearby, the injured party can sue you.

This actually happened in Baton Rouge, Louisiana, where DeRay McKesson organized a rally in 2016 outside a police station to protest what he claimed were excessive uses of force by the police. Someone at the rally -- not McKesson -- threw a rock that hit and seriously injured a nearby police officer. The officer, whose lawyers have declined to identify, sued McKesson, even though they acknowledge that he didn't throw the rock, didn't advocate attacking the police and uttered no words suggesting imminent lawlessness.

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