Still only seven weeks old, the Occupy Wall Street protest and its myriad offspring throughout the United States are beginning to engage in what will surely be a long battle with local authorities over curfews and other types of assembly permits. Leaders and counsel of “Occupy” movements across the country are presenting First Amendment challenges to municipal actions. Though making the usual ritual reference to the “freedom of speech and assembly,” the defenders of the Occupy movement—and their opponents—have framed the debate thus far almost entirely on the usual free speech terrain: the speech vs. conduct distinction, the issue of content-neutrality, and the reasonableness of “time, place, and manner” public forum restrictions. Even on these terms, the protesters often have strong claims that city governments have violated their rights. One fascinating question, however, is the extent to which the freedom of assembly—that often-mentioned but underdeveloped provision of the First Amendment—could contribute to a stronger conception of the rights of Occupy Wall Street protesters than is provided by relying solely on speech as a framework.

The most egregious attempted use of a municipal curfew to disperse an Occupy protest in the last several weeks occurred in Nashville, Tennessee. There, Republican Governor Bill Haslam decided to crack down after “tolerating” the demonstrations around the Tennessee State House for three weeks. The governor promulgated a series of brand-new regulations—including a restrictive curfew—which led to the temporary abandonment of the Occupy campsite and more than 50 arrests. Even by the low standards governing such transparently political hatchet-jobbery, Tennessee’s efforts were sloppy. In granting the ACLU’s request for a restraining order against the new curfew, the U.S. District court noted that the government had violated the state’s own Administrative Procedure Act as well having trampled on the protesters’ First Amendment rights.

In attempting to quell statehouse protests in Albany, New York, the city government has not been nearly as clumsy, but it has acted in a similarly pretextual manner. The city government there recently announced that by “oral tradition,” the protest restrictions which apply to the statehouse grounds themselves apply to the adjacent park hosting Albany’s “Cuomoville” protester camp as well. As of now, the government has not yet enforced this unwritten curfew and attempted to evict the protesters.

Protesters obviously face more serious obstacles in challenging legitimate curfews or land-use restrictions—those which are longstanding and ostensibly content-neutral. In all major cities hosting Occupy protests, city officials have at their disposal ordinances which limit the availability of public spaces such as parks and restrict camping or overnight congregation. Some cities have not yet cracked down on the protesters, but others—including Oakland, Portland, and Austin—have begun to enforce their regulations against Occupy encampments and arrested dozens of protesters.

When subjected to the usual free-speech analysis, such regulations—assuming they are content-neutral on their face—are likely to pass muster as applied to Occupy protests. Though areas like city or state parks are quintessentially public forums, governments may subject both pure speech and “expressive conduct” to reasonable “time, place, and manner” restrictions, provided that they are narrowly tailored and provide alternate channels for communication. The issue of protest encampments and free speech has come before the Supreme Court before, and the results are not encouraging. In Clark v. Community for Creative Non-Violence (1984) , the Court dealt with the application of a prohibition against sleeping on the National Mall as applied to a group which had set up tents to raise awareness of homelessness. The Court found first that the regulation was tailored to the government’s interest in protecting, and second that the protesters were left with plentiful alternate ways to spread their message even if denied permission to sleep on the Mall.

As with its other “expressive conduct” cases, the Court in Clark considered the activity as worthy of First Amendment protection only to the extent that it was expressive; in other words, the protesters’ act of public assembly had Constitutional value only instrumentally, as a means of furthering the individual speech of the activists. According to this approach, the “Freedom of Assembly” invoked by protesters becomes legally irrelevant, a rhetorical garnish on a First Amendment claim that entirely boils down to speech rights. As long as governments can show an absence of content-discrimination (which will be a tall order in some cases), they will have strong arguments that the significant government interest in keeping avenues for local commerce and transit clear justifies clearing away long-term protester encampments and imposing time-of-day restrictions. Moreover, they can argue that protesters retain plentiful opportunities to spread their message even if the size or timeframe of their assemblies are curtailed.

The current, weak conception of the freedom of assembly—subordinating it almost entirely to freedom of speech—is not a historical inevitability, however. The First Amendment itself names speech and assembly as discrete rights, and the two were considered as such in the Supreme Court’s limited jurisprudence on the subject until relatively recently. For instance, in its 1937 decision in De Jonge v. Oregon incorporating the freedom of assembly into the 14th Amendment, the Court found that assembly—as well as “speech”—was an indispensable guarantor of democracy: it was vital “to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.” As John Inazu noted in a recent article on the “Forgotten Freedom of Assembly,” however, the Court in the late 20th Century began to conflate the two rights to the extent that they became indistinguishable in its jurisprudence, a process that cumulated with cases like Perry Education Association v. Perry Local Educators’ Association and Clark. On one hand, the Court’s modern public forum analysis values ad hoc assembly only as a conduit for speech; on the other hand, the Court’s “freedom of association” jurisprudence has made the rights of more permanent groupings dependent on the extent to which their association with each other has expressive content. Assembly on its own terms—the right to gather together in public—has become dormant.

As a considerable amount of recent scholarship has pointed out, something important may have been lost in relegating the status of freedom of assembly to a rhetorical afterthought. First, the act of assembly itself creates a value for congregants that exists apart from any political expression that takes place. Sharing space with others, feeling the strength of numbers, and experiencing solidarity all contribute to a kind of “secular communion” which derives its power not simply from any shared ideology (if any) but from shared existence. In Inazu’s words, assembly “may reflect a way of living and system of beliefs that cannot be captured by a text or its utterance at any one event.” Even more to the point, assembly has historically played a unique role in democratic self-government—the preservation of which is often held to lie at the heart of the First Amendment’s purpose. In a March article in the Yale Law Journal, Ashutosh Bhagwat argued that speech, assembly, and association should be reconceptualized as independent and coequal First Amendment protections. Treating assembly as a handmaiden to “speech” shortchanges the indisputable historical fact that the cause of democracy has been nudged forward as often by popular action as by talk:

“Voting and civilized discussion among individuals are of course important elements of democratic government, but they are hardly the sum total of the matter….In the typical modern protest or assembly utilizing the public forum, speeches are no doubt made and signs are waved, but they are hardly the main point of the exercise. After all, most of the speeches are inaudible and the signs often illegible. The point, rather, is the assembly itself. The fact of a large public gathering forms a sense of solidarity, helps to influence public opinion, and sends a message to political officials. Assembly, in short, is a form of petition and a form of associational speech, quite aside from what is said during the assembly.” (120 Yale L.J. 978, 996)

Adopting a thicker conception of First Amendment freedom of assembly would not, of course, help protesters avoid entirely the very real dilemma faced by even the freest societies in balancing competing interests. Even with a stronger right to assembly, neither Occupy Wall Street nor any other movement has the right to cripple local businesses or hold cities hostage. However, courts granting greater recognition to the independent right of assembly might gauge the reasonableness of government restrictions in a new light; in particular, the question of whether “alternate ample channels” exist might well have a different answer. Courts might well ask not only whether restrictions like curfews will leave protesters other opportunities to deliver their message, but also whether the restrictions deny them their meaningful right to gather together in public without undue harassment. In smaller cities and towns, especially, excessively restrictive curfews on use of centrally-located parks or squares could amount to an effective total ban on large assembly. The issue would become not whether overnight encampment significantly furthered protesters’ expression, but whether it furthered their interest in assembly—which it almost certainly does. Moreover, a stronger vision of the freedom of assembly might spur reconsideration of the maze of bureaucratic hurdles in modern cities which have greatly increased the difficulty of securing permission to march or assemble. To the extent that permit regimes turn ordinary citizens, in the words of Tabatha Abu El-Haj, into “supplicants in the democratic process,” they place very real strain on a fundamental right.

Occupy Wall Street and its sister protests well illustrate the independent value of assembly. Whatever their excesses or ideological inconsistencies, they have clearly tapped into a widely felt discontent whose strength is manifested not so much by verbal communication as by the act of gathering together and providing a visible demonstration of solidarity and demographic strength. A stronger conception of the freedom of assembly would capture, better than courts’ current doctrine, the unique benefits which such a movement can bring to the process of American self-government.