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US v. Cruikshank, 1stAmendment Guarantee Against Federal Encroachment
Site of Colfax Massacre, Origin of Cruikshank v. US
United States v. Cruikshank, 92 U.S. 542 (1876), addressed the”right of the people peaceably to assemble”, but ruled the First Amendment guarantee protected the right against only federal government encroachment.5 Cruikshank, despite its soaring rhetoric on the nature of the right to assemble, actually defeated the intent of the Enforcement Act of 1870 to protect black voters in exercising their right to vote.6
Cruikshank was decided during the Reconstruction Period following the Civil War, and soon after ratification of the Fourteenth and Fifteenth Amendments. In the future, the Supreme Court would determine that those two amendments gave the federal government power to protect many rights found in the Bill of Rights, including the Right to Assembly from encroachment by state government.
Right to Assembly Since Cruikshank
Freedom of assembly has come to protect gatherings of individuals organized for diverse purposes. The Ku Klux Klan, civil rights advocates anti-war protestors and striking union workers, communists and the American Nazi party have been able to gather publicly in protest or in support of their causes. The civil rights movement gained added impetus with the March on Washington. Women’s suffragists filled city streets to advance their cause. In recent times, meetings and rallies of Tea Party activists have brought public attention to concerns about federal government expansion. Freedom of Assembly has shaped and continues to shape America.
Communists, Civil Rights Advocates and Nazis
Illinois Holocaust Museum & Education Center in Skokie, IL
In De Jonge v. State of Oregon, (1937) a communist’s “right to peaceable assembly” was found to be as fundamental as free speech and free press. Dirk De Jonge had been teaching communist doctrine to 300 people. The Supreme Court ruled that “the holding of meetings for peaceable political action cannot be proscribed.”
On March 2, 1961, in Columbia, SC, 187 African-American high school and college students marched to the South Carolina Statehouse grounds, carrying placards bearing such messages as “I am proud to be a Negro” and “Down with segregation.”
They were arrested and convicted for breaching the peace. The Supreme Court reversed the convictions in Edwards v. South Carolina, finding: “in arresting, convicting, and punishing the petitioners … South Carolina infringed the petitioners’ constitutionally protected rights … free assembly … “
In 1977, the National Socialist Party proposed a march in the Village of Skokie, IL, home to many survivors of the Nazi holocaust. A court in Cook County, IL issued an order prohibiting the march. In National Socialist Party v. Skokie, the US Supreme Court overturned the order and ultimately the First Amendment Right of Assembly of the neo-Nazis was upheld by both the US Seventh Circuit Court of Appeals. The case demonstrated two things: the importance of First Amendment values even for distasteful ideas, and that the best response to distasteful speech is more speech. The Nazi/Skokie events have had the effect of motivating the telling of the holocaust story. 7
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