Unlawful Assembly & Failure to Disperse: Definitions & Laws

Instructor: Kenneth Poortvliet
The First Amendment gives us the right to assemble. In this lesson, we will learn about laws that make it a crime to assemble and to not disperse when told.

Don't Stand so Close to Me

Let's say you gathered with a few friends to talk politics and rant about high taxes and the government, and the police came and told you to break it up and told everyone to go home. Would that surprise you? Don't you have the right to get together with your friends? Don't you have free speech rights?

The Right to Gather

The First Amendment gives us the right to peaceably assemble. It says: ''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.''

It's no coincidence that in the same amendment with the right to assemble are the rights to religion, speech, the press, and to seek redress for grievances. Without the right to assemble, these rights would seem hollow. What if you had to only worship alone, or hold a rally and speak only to yourself? The Supreme Court has affirmed this right as part of the plethora of fundamental rights that constitute our freedoms.

However, like all rights, the right to assemble can be restricted or even denied.

Anti-Assembly Laws

Most local jurisdictions have laws or ordinances at their disposal to prevent unlawful assembly. These laws make it a crime to assemble for the purpose of violence or illegal activity. A typical law reads:

Unlawful Assembly

  1. The gathering of two or more people,
  2. For the purpose of:
    1. Doing something illegal, or
    2. Doing something legal, but in a violent, boisterous or tumultuous manner.

Under this law, for a gathering to be illegal, there must be either illegal activity or legal activity but done with violence or tumult. It's easy to determine the illegal activity element. If people are gathered to commit a crime, then the gathering is illegal. However, the second element is more difficult because it concerns gathering for lawful purposes and only becomes a violation when the gathering turns violent, boisterous, or tumultuous.

Examples would be a union picket line of a grocery store. The activities are time-honored ways of protesting policies that are unpopular or contrary to one's beliefs and the law allows these to take place. However, if the picketing gets overly loud, or turns to violence, then the police can break it up and issue arrest if necessary.

So what's the problem? If it's peaceful, let it go, but if it turns violent, start making arrests. Sounds easy, right? The problem lies in trying to keep the event from blowing up and leading to injuries, property destruction, and even death. The difficulty then comes when police attempt to stop the gathering before it gets that far. When is it lawful to shut down the gathering?

The most likely point would be once the group starts to advocate violence then move in. However, the Supreme Court has held in several cases that merely advocating violence is protected by the First Amendment free speech clause. In Schenk v. United States (1919), the Court established the clear and present danger test, which allowed the government to arrest a group of communist activists who were handing out pamphlets advocating the overthrow of the government. This represented a clear and present danger.

However, in Brandenburg v. Ohio (1969), the Court overturned Schenk as it was used to break up a gathering of Ku Klux Klan who were advocating violence against groups and the government. However, the court held that if the words amount to the ''the directing to, or incitement of, imminent violence,'' the government could stop them. This became the imminent lawless action test, which looks to see if the speech is tending toward the advocacy of imminent violence rather than violence in general.

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