The End of the 1st Amendment’s Assembly and Petition Clauses

By Robert Jensen

Published in Counterpunch · December, 2005

[This article first appeared as “The First Amendment’s assembly and petition clauses–eviscerated by Big Money?” in the Fredericksburg (VA) Free Lance-Star (VA), December 4, 2005.]

While the great battles fought over the First Amendment’s religion and free-speech/-press clauses are some of the most inspiring stories told ’round the legal campfire, the amendment’s assembly and petition clauses are mostly a forgotten footnote.

There has been no great legal battle in easy memory over the right “to petition the Government for a redress of grievances.” In 1939, the Supreme Court decided a case, Hague v. Congress of Industrial Organizations, that definitively established “the right of the people peaceably to assemble” in public space, and there’s been little discussion since.

Yet both these First Amendment footnotes offer important lessons about the more subtle–and what today are more crucial–obstacles to meaningful democracy that come with our economic system.

The right to petition the government is not really in question in a modern nation-state based on democratic principles. While a king, whose legitimacy was grounded in the concept of divine-right monarchy, might have contested his subjects’ rights to press political demands, citizens in a democracy have an inherent right to petition those politicians who are supposed to serve us.

But a question nags: Are all petitions received by our leaders given equal weight? Are rich and poor alike going to be heard? The answer is painfully obvious.

Two realities distort the right of petition in the real world.

First is the reality that political campaigns are exercises in fundraising. For example, 96 percent of House and 91 percent of Senate races in 2004 were won by the candidate who spent the most. Those who provide that funding have an advantage: Money equals access, which means that when the campaign is over, some petitions are more equal than others.

Debates about the constitutionality of campaign-finance reform measures that try to deal with the distorting influence of big money are typically framed by the question of whether they limit the freedom of speech of contributors or candidates. But we might start to think of such reforms as protection of the right of petition.

Second, those who hire well-connected (and expensive) lobbyists to deliver a petition have an advantage. Recent news has focused on how lobbyists Jack Abramoff and Michael Scanlon allegedly defrauded their own clients, but the main problem with the lobbying industry is the routine way it skews the political process toward those who can afford to hire the big guns to influence policy.

Should we place stricter limits on paid lobbyists? Some argue it is a restriction on political freedom to limit anyone’s right to spend money in attempts to influence public policy. But in a world in which the playing field is so tilted toward the wealthy, can we pretend that traditional libertarian defenses of money-as-speech can adequately address the contemporary political crisis?

Moreover, while the right to peaceably assemble is established in law, there remain struggles to ensure that the right to do so isn’t undermined by sophisticated police tactics that appear to allow public protests but use pre-emptive arrest, physical barriers, and “free-speech zones” to limit protesters’ ability to engage the public. Such heavy-handed operations were effective in Miami during the protests of the 2003 meetings about the Free Trade Area of the Americas and in New York during the 2004 Republican National Convention.

Yet the most disturbing threat to freedom of assembly isn’t from the ways in which police officers restrict movement in public space, but from the disappearance of public space itself. Our conception of political assembly is rooted in a geography that is increasingly rare–the town square, the public meeting ground, a collective space in which people gather expecting political engagement.

Today the space that is most public is privatized: the shopping mall. If one wanted to distribute a political pamphlet and engage fellow citizens in conversation about the issues of the day, the mall would be the optimal site–a place where people of all ages and classes gather for commercial and social purposes.

But while the mall is a very public place in some senses, it is private property and hence not governed by the First Amendment. The U.S. Supreme Court has declined to impose on the owners of these public spaces the requirement to honor people’s assembly and speech rights there (though they left the door open for states to find such a right in their own constitutions). When our lives in public are increasingly conducted in privatized space, are conventional understandings of “public” and “private” adequate for a democracy?

Both these First Amendment freedoms illustrate the paradox of U.S. politics. On one hand, we have extensive formal guarantees of political freedoms that have been hard-won by dissidents and progressive political movements that pressed the courts and legislatures to expand the scope of freedom. But the concentration of wealth in corporate capitalism means that those formal freedoms–while never irrelevant–are increasingly less important in a world in which money is necessary to amplify our voices in mass media.

The distortion of a political process by our economic system is also obvious in the realm of the speech and press clauses of the First Amendment, where we face tough questions about how to counter the increasing concentration of media ownership in a shrinking number of corporations, and whether full First Amendment protection should extend to commercial advertising.

If First Amendment debates are to be productive–if they are to be part of a process that helps us re-energize a political system that an increasing number of people feel is irrelevant to their lives–we will have to come to terms with the inherent incompatibility of capitalism and democracy. The former is a wealth-concentrating system that also concentrates political power, while the latter is premised on the assumption of the diffusion of power.

To date, the Supreme Court has ignored this simple reality, as has most of U.S. society. Even the self-proclaimed guardian of freedom, the American Civil Liberties Union, has trouble thinking straight about the problems for democracy that capitalism creates.

But if the First Amendment is to be part of a real democratic future–one in which ordinary people have a meaningful role in the formation of public policy, not simply a place in the political stadium as spectators–lawmakers and judges will have to come to terms with this basic contradiction.

It is unlikely they will confront the issue unless We the People force them to.