The right to peaceably assemble is built into the United States Constitution as the First Amendment of the Bill of Rights. It reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The Due Process Clause of the Fourteenth Amendment protects the right to peaceably assemble at all levels of government. Originally, the First Amendment applied only to federal law. Now, it applies to city, county, and state law as well.
Public and private spaces
Freedom of assembly is the freedom to assemble peaceably in public places, such as streets, sidewalks, and parks. Lloyd Corp v. Tanner (1972) reaffirmed that “publicly owned streets, sidewalks, and parks are so historically associated with the exercise of First Amendment rights that access to them for the purposes of exercising such rights cannot be denied absolutely.”
However, the right to peaceably assemble does not apply unconditionally to privately owned spaces. This includes popular gathering spots, such as malls and online community sites.
Peaceable assembly is allowed in a city’s business district. In Marsh v. Alabama (1946), even the common areas of a company town are considered to have enough of the attributes of a municipality to fall under the First Amendment.
According to the Marsh decision, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Hudgens v. NLRB (1976) further establishes that property rights are dominant over free speech and assembly rights. Property rights of the owner are secondary to free speech rights only if that owner has already opened up his property for use by the public in general. In other words, the more tightly a business owner limits public access to his property, the more limited is the right to peaceably assemble on that property.
This is particularly important for malls. Malls restrict rights of access by invoking trespassing laws in cases where an individual has not otherwise broken the law but is clearly not there for any of the reasons for which the store exists. However, the mall will have more difficulty in limiting peaceful assembly where participants buy a coffee and show willingness to buy more in proportion with any other impact upon the area, thereby acting in accordance with the intended purpose of the property.
Even picketing a store in a mall is not out of the question. According to Amalgamated Food Employees Union v. Logan Valley Plaza (1968), a mall is the functional equivalent of a city’s business district. Thus, the mall may not “wholly … exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property was actually put.
However, demonstrations in malls which which do not target any of its stores are not protected by the First Amendment. A labor dispute with one of the stores is protected under the First Amendment. An anti-war demonstration is not. Lloyd Corp v. Tanner found that “there is no open-ended invitation to the public to use the Center for any and all purposes.” The invitation is limited to purposes which are compatible with the purpose of the shops.
In the unanimous decision Pruneyard Shopping Center v. Robins (1980), the U.S. Supreme Court found that the state has the right to exercise police power to regulate the use of private property, in the interests of protecting a property owner’s right to exclude others from his property. Even though other decisions have reaffirmed that the community mall effectively acts as a public forum, the extent to which it can be placed to such use is best determined on a case by case basis.
Private colleges also have some of the attributes of public forums, more than malls do. In Commonwealth v. Tate (1981), an anti-war group on a private campus could not be charged with trespass for distributing leaflets. However, the same kind of action was overturned in Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co (1986), where a shopping mall was the venue.
However, for box stores and other stand-alone stores, there is no ambiguity of purpose. Albertson’s v. Young (2003) found that the supermarket “was a single-use grocery store that contained no plazas, walkways, or courtyards for patrons to congregate and spend time together.” It has no function as a public forum. In these kinds of stores, the First Amendment’s right to peaceable assembly only protects shopping and picketing rights.