The images of the Ferguson protests will haunt us for years to come. Some violent actions were properly quelled by law enforcement; some violent agitators properly subdued. But in the first few days of protests, law enforcement ran roughshod over the First Amendment right of assembly. And black Americans took the brunt of that beating.
It was not the first time. The right of peaceable assembly has been at the heart of the struggle of African American equality throughout our nation’s history. When honored, it has yielded important protections. When breached, it has facilitated widespread and systematic oppression.
During the antebellum era, citizens in southern states recognized the significance of assembly and routinely sought to prohibit its exercise among slaves and free blacks. Throughout the antebellum era, white citizens petitioned state legislatures to intensify restrictions on assembly against African Americans. In 1818, citizens in North Carolina petitioned for restrictions against “the Numerous quantity of Negroes which generally assemble,” and forty years later sought “to relieve the people of the State from the evils arising from numbers of free negroes in our midst.” In South Carolina, citizens petitioned in 1820 to ban churches established “for the exclusive worship of negroes and coloured people.” And in Mississippi, citizens distraught over “crowds of negroes, drinking, fiddling, dancing, singing, cursing, swearing, whooping, and yelling, to the great annoyance and scandal of all respectable and order loving persons,” sought in 1852 to restrict “any noisy or clamorous assembly of negroes.” Similar petitions unfolded in Virginia and Delaware.
Southern legislatures embraced these restrictions. A 1792 Georgia law restricted slaves from assembling “on pretense of feasting.” In South Carolina, an 1800 law forbade “slaves, free negroes, mulattoes, and mestizoes” from assembling for “mental instruction or religious worship.” An 1804 Virginia statute made any meeting of slaves at night an unlawful assembly. In 1831, the Virginia legislature declared “all meetings of free Negroes or mulattoes at any school house, church, meeting house or other place for teaching them reading or writing, either in the day or the night,” to be an unlawful assembly.
The restrictions on assembly intensified following Nat Turner’s 1831 rebellion in Southampton County, Virginia (pictured above). Turner’s insurrection sent Virginia and other southern states into a panic. Virginia governor John Floyd made the rebellion the central theme of his December 5, 1831, address to the legislature. Floyd believed that black preachers were behind a broader conspiracy for insurrection and had acquired “great ascendancy over the minds of their fellows.” He argued that these preachers had to be silenced “because, full of ignorance, they were incapable of inculcating anything but notions of the wildest superstition, thus preparing fit instruments in the hands of crafty agitators, to destroy the public tranquility.” In response, the legislature strengthened Virginia’s black code by imposing additional restrictions on assembly for religious worship.
Concern over Turner’s rebellion also spawned additional restrictions on the assembly of slaves and free blacks in Maryland, Tennessee, Georgia, North Carolina, and Alabama. By 1835, “most southern states had outlawed the right of assembly and organization by free blacks, prohibited them from holding church services without a white clergyman present, required their adherence to slave curfews, and minimized their contact with slaves.” The following year, Theodore Dwight Weld aptly referred to the oppressive restrictions on blacks as “‘the right of peaceably assembling’ violently wrested.”
The extent of restrictions on the assembly of African Americans is evident in an 1860 opinion of the Louisiana Supreme Court, African Methodist Episcopal Church v. City of New Orleans. In 1848, a group of ten free blacks had established the African Methodist Episcopal Church as “a private corporation having a religious object,” pursuant to the state’s statute governing the organization of corporations. Two years later, the Louisiana legislature amended the relevant statute to provide that “in no case shall the provisions of this Act be construed to apply to free persons of color in this State, incorporated for religious purposes or secret associations, and any corporations that may have been organized by such persons under this Act for religious purposes, or secret associations, are hereby annulled and revoked.” New Orleans then passed an ordinance that outlawed “assemblages of colored persons, free and slave” “for purposes of worship . . . unless such congregation be under the supervision and control of some recognized white congregation or church.” In rejecting the claims of church members against the city, the Louisiana Supreme Court opined that “the African race are strangers to our Constitution.”
The early twentieth century saw the emergence not only of the National Association for the Advancement of Colored People (NAACP) but also of Marcus Garvey’s more audacious Universal Negro Improvement Association (UNIA). Garvey’s organization drew tens of thousands of members. He capitalized on symbolic expression that upended social norm:
Parading through Harlem on August 2, 1920, the UNIA’s massed ranks took three hours to pass by. A chauffeured automobile, preceded by four mounted policemen, conveyed Marcus Garvey, the Provisional President of Africa, in the manner befitting a head of state. Resplendent in brocaded uniform and cocked hat, Garvey acknowledged the cheering onlookers with a regal wave of the hand. More cars trailed behind him, carrying regalia-attired lesser officials, including the Knight Commanders of the Distinguished Order of the Nile .Then came thousands of walking rank-and-file. Uniformed contingents marched in proud lockstep: the Black Star Line Choir, the Philadelphia Legion, the Black Cross Nurses, the Black Eagle Flying Corps, the African Motor Corps. Swaying bands from Norfolk and New York City “whooped it up.” Then a forest of banners, each emblazoned with a slogan—variations on “Africa for the Africans!”—snaked its way down Lenox Avenue. They were borne aloft by UNIA members who came from Liberia, Canada, Panama, British Guiana, the Caribbean islands, and a dozen states of the Union. Hundreds of cars and more mounted policemen ended “the greatest parade ever staged anywhere in the world by Negroes." (quoted in Liberty's Refuge)
The historian Adam Fairclough cautions against dismissing “Garveyism” as mere showmanship; for one thing, it “reflected a popular fad of a type all too common in the 1920s—when millions of Americans, whites and blacks, donned exotic hats and robes to become Masons, Elks, Oddfellows, and Shriners.” Garvey’s contemporaries took him seriously, and he became “the first black nationalist—the only one before or since—to create a mass movement.” The movement proved short-lived, due in part to Garvey’s contentious positions and unconventional alliances (among other views, Garvey espoused racial separatism and “racial purity” that earned him the support of white segregationists). But as Fairclough observes, unlike the NAACP, Garvey’s UNIA “was entirely led, controlled, and financed by black people,” and it “fostered racial pride in ways the NAACP simply could not.”
In 1937, the Supreme Court decided the appeal of Angelo Herndon, a young black man affiliated with the Communist Party in Georgia who had attempted to organize black industrial workers. Four years earlier, Georgia had convicted Herndon of attempting to incite an insurrection under a Reconstruction era law and sentenced him to eighteen to twenty years’ imprisonment (the insurrection conviction was a capital offense, but the jury had recommended mercy). The state had argued that Herndon was “attempting to organize a Negro Republic in Georgia.” The trial court emphasized that Herndon “was an organizer and induced a number of persons to become members of the Communist Party,” an “attempt to induce others to combine in [violent] resistance to the lawful authority of the state.” The Communist Party’s International Labor Defense pursued his appeals, and within two years, “white liberals, labor leaders, and other citizens joined blacks and radicals in viewing the conviction as a serious threat to basic civil liberties, especially the rights of free speech and free assembly.” After Herndon had spent years languishing in a Georgia prison while his appeals went up and down the courts, the Supreme Court concluded that the statute under which he had been convicted was “merely a dragnet which may enmesh anyone who agitates for a change of government.” Herndon’s efforts to solicit members and hold meetings fell squarely within the boundaries of the right of peaceable assembly. As the Court noted, “the power of a state to abridge freedom of speech and of assembly is the exception rather than the rule.”
The right of assembly also figured prominently in cases overturning convictions of African Americans who participated in peaceful civil rights demonstrations during the 1960s. Martin Luther King, Jr. recognized its importance. In his Letter from a Birmingham Jail, King asserted that the city’s ordinance denied “citizens the First Amendment privilege of peaceful assembly and protest.” And in his speech, I’ve Been to the Mountaintop, delivered just prior to his assassination, King proclaimed: “Somewhere I read of the freedom of assembly. . . Somewhere I read that the greatness of America is the right to protest for right.”
Strangely, by the end of the 1960s, the right of assembly had largely disappeared from American constitutional law. The Supreme Court, in fact, has not addressed an assembly case in thirty years. But Ferguson—and the history toward which it points—shows us why assembly cannot be forgotten.
John D. Inazu is associate professor of law and political science at Washington University in St. Louis, and a faculty fellow at the Institute for Advanced Studies in Culture. This essay is adopted from his book, Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012).