We’ve Neglected the Freedom of Assembly for Years Before Portland

The First Amendment prevents the government from doing a whole lot of things. We tend to focus on the freedom of speech, but the First Amendment also protects other, equally important freedoms, among them, “the right of the people peaceably to assemble.” The right to assemble, protest, and gather is the neglected younger sister to the free speech clause. As the Supreme Court lavishes attention on commercial speech and money as speech and religious signage and union dues and cake baking as speech, the freedom to gather and protest is often forgotten.

But this spring and summer, as protests broke out across the country initially in response to the police killing of George Floyd, a Black man, and increasingly in response to government crackdowns on protest itself, we are left with the grim prospect of protesters without much legal protection, despite the First Amendment. This much was plain to see in two congressional hearings on Tuesday, in which thousands of peaceful demonstrators were dismissed as anarchists and mobs, both by Republicans in Congress and by Attorney General William Barr.