Freedom of Assembly Clause: Edwards v. South Carolina Case Excerpts

0:04 Hello, and welcome to another Primary Source Close Read. My name is Josh, and today I’m excited to be joined again by professor Josh Dunn as we take a look at the supreme court case of Edwards v. South Carolina. Josh, thanks so much for joining me. Great to be back with you. Yeah. So, Josh, you, like me, are probably a Supreme Court nerd.

0:29 So this is what we do. We love looking at these types of cases, and we’re just here to help you students out who are studying the case, needing to prep for tests or whatever it might be. So let’s go ahead and dive into the case. So this case is a freedom of assembly case, and I always like to start off

0:53 with a broad constitutional question so we know what we’re dealing with. So today our question is what constitutes an assembly is protected by the first and 14th amendment. So let’s start off by taking a look at the actual text of the first amendment. So here we have Congress shall make no law respecting religion, freedom of speech,

1:18 freedom of press, or the right of the people peaceably to assemble. So, Josh, why did the founders include protection for freedom of assembly in the first amendment? It’s really because it follows from speech and press and then ultimately concludes with petition. So if people are concerned about what the government is doing,

1:41 they’re going to speak about it, and then they want to broadcast it as widely as possible, so they use the press, but then they get together. So like minded groups of people are going to come together and talk about what they think the government should do or shouldn’t do or what it should change, and then that can lead to a petition to the government for redress of grievances. So you don’t like what it’s doing,

2:01 you go to them and you say, please change it. But all those other things really need to happen first, or at least most of the time they need to happen first. If people can’t get together, it’s going to be very difficult for them to find other like minded individuals who share their concerns. And then also it’s important because it gives them a sense of strength, because if you on your own,

2:22 it’s going to be much more difficult to have an influence on government policy. But if you can join together with others, which happens through assembling, then you will feel stronger and will have a better chance of actually getting your point across to those in power. Great. Now, the first amendment originally it just applied to the federal government.

2:44 Correct. Then we have the 14th amendment here. Why was the 14th amendment created, and how does that apply to this case? All right, so the 14th amendment was one of the three civil war amendments. You have the 13th amendment, the 14th amendment, and the 15th amendment. And so the 13th amendment forbid slavery and involuntary servitude the 14th amendment, there are several substantive

3:08 components, the most important of which are equal protection of the law, privileges or immunities, and due process of law. And then you have the 15th amendment, which forbids the infringing the right to vote based on race. So the 14th amendment, it does several things with the protection clause.

3:28 Privileges, immunities, although that clause was largely written out, are almost neutered by the supreme court in what was known as the slaughterhouse cases and then the due process clause. So the due process clause for our purposes here today, what made it important was that that’s the vehicle that the court used to apply parts of the bill of rights

3:49 to the states, because, as you mentioned, the first amendment and the Bill of Rights as they were initially written, only applied to the national government. First word of the Bill of Rights is congress, right. So congress shall make no law, so it restricts the national government. What the Supreme Court did, though, is incorporated or applied parts of the Bill of Rights. Now, most of the Bill of Rights to apply to the states, and they use the due

4:09 process clause of the 14th amendment to do that. Great. Thank you. Yeah. So let’s go into the actual case. So can you give me some background what happened? All right, so this is part of the merger of the civil rights movement. And you had a group of high school and college students, black high school and college students,

4:31 who wanted to protest, but they were doing so nonviolently. This is in South Carolina, and they’re marching to the state capital. They were doing this completely peaceably and peacefully, and they were singing songs and doing other things, and ended up being a crowd of, I think, around 200 or 300 people. And they had been in contact with the authorities about their march,

4:55 about their protests, and everything was fine. But then eventually they were ordered to disperse and to leave and to stop protesting. And they didn’t. They kept singing. People were giving speeches, and they ended up getting arrested because they didn’t obey these orders to disperse. And so they challenged.

5:18 They are being arrested and punished. And it went all the way to the Supreme Court. And the Supreme Court, as we’ll see, ended up siding with the students. Yeah. So the court ended up ruling eight to one in favor of the students. And here justice potters to where wrote the majority opinion,

5:39 and here at the end of this quote, he states that in a free society, basically, conditions of unrest, dissatisfaction, anger from unpopular views, that’s normal in a free society, and we actually want to create a system that allows for that.

6:03 Is that a fair summary of this? Yes. And what they’re arrested for was that there was a breach of the peace in the majority opinion. They said, well, this law is extremely vague, and it would actually limit people’s constitutional rights. It’s so broad that it could be used to limit their constitutional rights

6:26 because you can say, oh, well, they’re unpopular views, and therefore this might cause some people to get upset. If they’re expressing them, then that’s going to obviously infringe upon their First Amendment liberties. And so the Supreme Court was deeply concerned about

6:47 the vagueness of the law and its potential for abuse. Here. We have another quote here. Yeah, I’m talking about the vague, to use is that exact word here, indefinite vague. It’s a violation of the guarantee

7:07 of liberty as guaranteed by the 14th Amendment. Yeah, so that seems pretty straightforward, right? It’s too vague. It’s over the top. Why was there one dissent then? We have Justice Tom Clark right here. So Justice Clark’s descent, he was just willing to give more latitude

7:33 to public officials in confronting what could be potentially dangerous situations. I think that’s the best way of describing his position that you hear he’s discussing the City Manager of Columbia, I think. Well, this dangerous situation is really building up.

7:53 And so his argument is that while these public officials, they’re in this difficult position, they have an obligation to try and maintain public order, peace as well. And so the First Amendment, while it’s important, as he says, freedoms cannot be gained save at times, those freedoms might have to be curtailed

8:22 because of you have to protect society from, once again, breaches of peace or conflict or violence, those kinds of things. And so he was just willing to give much more weight to the judgment of the City Manager of Columbia and the police in Columbia because they thought

8:43 that something dangerous likely could emerge from this protest. Sure. This reminds me of a couple of weeks ago, we talked about Brandenburg, the Ohio, and this reminds me a bit of that, where the Court needs to decide to what extent is it going to protect

9:03 freedom of speech or in this case, freedom of assembly, and to what extent does it need to protect safety and rule of law? So at what point does the law have a duty to step in? As you said, these students were being peaceful, they were singing, but at what point does a large crowd potentially get out

9:27 of control easily, is the question that the Court needed to do. Yeah, that’s a question. Although here it’s pretty clear that. All. The facts were on the side of the students, because if there was going to be any violence, it was not going to be because of the students. There was no evidence presented showing that what they were

9:48 doing was actually going to be violent at all. The only thing that could happen and they weren’t calling for violence. They were protesting on protection for their rights, opposing, of course, Jim Crow laws. And the only conflict that could have occurred would have been from bystanders who just didn’t like what they were saying.

10:09 So even if you jump forward to the Brandenburg test that was created in Brandenburg versus Ohio, the only way you can be punished under the Brandenburg test is that if you actually are calling for violence, you’re proposing violence, and there’s a likelihood that violence will ensue. And that wasn’t the case here. They weren’t calling for conflict or violence.

10:33 So even under the Brandenburg test, let’s say if it had been in effect in this case, they easily would have been protected under it. That’s a great point. Yeah. So we have here just a final quote from Justice Tom Clark after we already looked at that.

10:53 He does recognize, like you said, that the First Amendment protections are important, but again, he’s just trying to consider balancing it with necessary state action designed for the protection of society, as he puts it. Yeah, the majority just thought that I think the majority would say in response

11:17 to Justice Clark is that, well, that protection of the society. That’s pretty vague too, in the same way that the South Carolina law was vague. Yes exactly. So what is the modern day impact of this case? Is this still applicable today?

11:38 Oh certainly. So you don’t read the Supreme Court decision and actually says that they’re basing the decision on speech, freedom of speech, freedom of assembly and petition because the students were marching to the state house and so they’re broadcasting their complaints in front of the state legislature, knowing that of course,

11:59 people in the state legislature would hear them. So as part of the petitioning, the government for redress of grievances. So this is an important case. I would say that the doctrines that you have in this case or that are announced in this case, the reason in this case was fortified by later cases like Brandenburg

12:20 versus Ohio and even strengthen more by them. Great. Yeah. Then, let’s return to the question that we opened with. So what constitutes an assembly is protected by the first and 14th Amendment? To could summarize briefly, how would you answer that?

12:41 Yeah, so this is where I think you do have to jump forward to Brandenburg. What’s a lawful assembly or what’s speaking in front of people that’s going to be protected? It’s a group of people coming together, discussing their concerns. And if there’s not a threat of imminent

13:02 lawless action from them, I think that an assembly is going to be protected. Now, there are circumstances where, for instance, shutting down an interstate highway because you want to protest, that’s not going to be protected. Right. You don’t have the right to just go and stop traffic wherever you want to,

13:24 but if you’re peacefully assembling in what’s known as a traditional public forum, or if you have been given access to what’s known as unlimited public forum, again, as long as there’s not the threat of imminent lawless action, your assembly is likely going to be protected under the First Amendment.

13:44 Well, thank you so much again for coming on and talking with me about this important Supreme Court case. So the Bill of Rights Institute is about to release a new Homework Help video on the freedom of assembly, and in that case, we’re going to be looking at the history of the First Amendment freedom of assembly

14:05 clause as well as some landmark Supreme Court cases. So please be sure to check that out when it has been released. You can also find us on Facebook, Twitter, other social media platforms, so please reach out to us with any questions that you may have.

14:26 Josh, thank you again for joining with me. This was really great. Thanks again. It’s great to be with you.