This piece originally appeared on the Federalist Society blog on August 22, 2024.
Protests on a range of sensitive issues have roiled college campuses across the nation this year, reigniting debates about the scope and limits of the rights to free speech and assembly. Against this backdrop, it’s worth examining a little-understood but increasingly relevant portion of the First Amendment: the right to assemble.
For centuries, Americans have argued about how far our right to assembly extends—especially when claimed extensions of the right, such as a right to secret assembly, may conflict with other interests, such as safety or transparency. These longstanding tensions have taken on new importance in the modern age of surveillance, cancel culture, and polarization. An examination of the history of the Assembly Clause offers essential context for upholding this “lost liberty” in the 21st century.
I recently delved into the history of the First Amendment’s Assembly Clause, which safeguards “the right of the people peaceably to assemble.” A good-faith debate over this right has existed since the 1700s. Even then, the Founders disagreed about its scope. Did it, for instance, extend to secret or anonymous gatherings?
In the fall of 1875, for example, a convention in Raleigh proposed gutting North Carolina’s 1868 Reconstruction Constitution—a constitution written by black freedmen and Northerners and passed as a condition of the state’s readmission to Congress. Democrats held a slim legislative majority and, considering the 1868 Constitution’s origins, likely would have preferred to repeal the document altogether. However, state law only allowed delegates to propose amendments to the Reconstruction Constitution, not to abolish it.
The delegates proposed amendments with the primary goal of transferring power from local, often black-led governments to the state’s legislature. The voters approved the changes the following year. One key amendment restricted the right to assemble, declaring that “secret political societies” were intolerable dangers to liberty.
One might assume that such a provision aimed to crush the Ku Klux Klan, but the opposite was true. North Carolina Democrats repeatedly denounced Republican secret societies, formed to assist freedmen and mobilize party voters, as the real threat. To many Democrats, the existence of secret Republican groups justified both Klan terror and the abridgement of black assembly rights.
The North Carolina convention exemplifies the recurring conflict between safety and secrecy regarding the right to assemble. Leaders have long warned against the potential political risks posed by secret groups. And the practical argument against a right of secret assembly is that secrecy and anonymity may permit sinister individuals to operate in the shadows and escape accountability.
The historical record makes two things clear about secret assembly: First, Americans have always understood that secret assembly could be dangerous. Secrecy can empower the worst actors: Klansmen, left-wing militants, corrupt political machines, and all manner of conspirators.
Second, despite the danger, most Americans throughout history have recognized that the right to assemble includes the right to gather secretly. In 1803, for example, prominent early American legal scholar and judge St. George Tucker annotated Blackstone’s influential legal treatise Commentaries on the Laws of England to state that the First Amendment permits “peacable assemblies by the people, for any purposes whatsoever, and in any number.” Laws against the masons and other secret societies were common in Britain at the time. As a result, Tucker commented that the Assembly Clause banned laws “suppressing assemblies of free-masons, &c. [which] are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns.”
Much like contemporary Americans who debate how far our rights extend, early Americans fully understood the potential downside of secret assembly. They nonetheless concluded that the benefits of a right to secret assembly—free political discourse, protection for dissent, a more active citizenry, and more—outweighed those dangers.
Americans have also historically thought freedom of assembly protected more than just anonymous gatherings; laws excessively burdening secrecy have also long been considered invalid. Tucker, in his Blackstone annotations, implicitly questioned whether Congress could compel Freemasons to turn over their membership lists. Abolitionists condemned oppressive state laws limiting the ability of slaves and freedmen to gather privately and at night. In 1893, the Wisconsin Supreme Court held that permit requirements and similar restraints compromising anonymity were an unconstitutional violation of the right to .
Despite the long pedigree of the right to secret assembly in America, questions about its application persist, and Supreme Court opinions rarely address it.
Advances in surveillance technology and the rise of virtual assembly in the form of online meetings and communications suggest that Assembly Clause doctrine could benefit from an update. Are encrypted digital gathering places and tools that enable anonymous online coordination sufficiently analogous to secret societies meeting behind locked doors that they should enjoy the same protection under the Assembly Clause?
Likewise, should overbroad disclosure regimes that compel nonprofit groups to reveal their supporters face scrutiny under the Assembly Clause? After all, those rules dissuade many possible supporters from contributing to or participating in a group’s activities or advocacy for fear of having their personal information or connection to the group exposed and exploited. Such disclosure regimes conflict with the historical understanding of the Assembly Clause’s protection against laws burdening secret assembly.
In recent years, however, scholars and courts have often conflated free assembly with free association—another important (but distinct) constitutional right. Since the 1950s, court decisions upholding anonymity have relied primarily on the right to association rather than the Assembly Clause. This focus on the former has unfortunately left the latter underdeveloped.
Although safety concerns persist, they are not one-sided. For many, the right to secretly assemble increases their safety. In the 1958 case NAACP v. Alabama, the Supreme Court stopped racist state officials from exposing the NAACP’s member rolls, which would have imperiled those on the lists. The Court ruled that “compelled disclosure of affiliation with groups” espousing “dissident beliefs” can be “as effective a restraint on freedom” as any direct form of government misconduct.
In an era of facial recognition technology, protecting too may be necessary. Many today—from good intentions—advocate laws prohibiting people from assembling in disguise. But governments have historically used such laws to silence political dissenters: to stop 19th-century tenant farmers from opposing their eviction; 20th-century students from picketing against Iran; and present-day Hong Kongers from protesting the People’s Republic of China. Without the power to gather in secret, American dissenters cannot defend themselves from the despotic power of mass society. As the North Carolina delegates in 1875 understood, prohibiting secret assembly was a way to gain illegitimate political advantage. That understanding speaks to the immense importance of the Assembly Clause and to the liberty it protects.
