IV. The value of freedom of assembly: c ontemporary judicial rationales
1. Expression-related values, or the judicial link between expression and assembly
50 participate at a demonstration was fully protected activity.166 Courts and authorities nowadays however do not appear to bother with that, and so will I not either any further.
51 German understanding, ‘displays his personality in a direct way’, demonstrators ‘take up a position in the real sense of those words [‘Stellung nehmen’ – O.S.] and testify to their point of view’.168 Thereby, the Court draws the attention to the physical, bodily nature of assemblies and demonstrations. In that way, the value to be protected is the person’s willingness or desire to show support for a point of view by her body. It is not ‘speech’
coming from the brain and the mouth, neither opinions or ideas, but the human body as it stands in front of the public that is worthy of constitutional protection.
It is impossible not to notice that the German court eventually discards, or at least significantly weakens the importance of the collective aspects of assembly and demonstration with this focus on each protestor’s body taking a stance, filling up a concrete place. On the other hand, the focus on physically taking a stand also values the act of taking a stand more than the individual message, and in this sense it emphasises material, quantitative aspects of demonstrations, and a specific feature compared to an argumentative essay which I think is otherwise the paradigmatic view of the object protected by freedom of expression. The German court in this regard very clearly sees a specificity of public assemblies. Note however that the quantitative or bodily aspects of a demonstration are still integrated into an expression rationale, and not understood as the self-standing characteristic of assemblies. Apparently, the Court takes ‘expression of personality’ as the general category within which fall something like ‘intellectual’
expression on the one hand, and ‘bodily’ expression, on the other.
At the Strasbourg level, the relation between expression as value and assembly is rather simple, or certainly not overtheorised: even though assemblies are covered by the autonomous right of art 11 which is lex specialis in relation to art 10,169 cases arising under that article shall also be read in the light of art 10. As the Court explains: ‘the protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11.’170 As one of the functions of art 11 is to
168 BVerfGE 69, 315, 345, translation taken from
http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?Ibid=656.
169 Ezelin v. France, Application no. 11800/85, Judgment of 26 April 1991, Series A no. 202, § 35.
170 Ibid. at § 37 and Galstyan v. Armenia, § 96, Application no. 26986/03, Judgment of 15 November 2007.
52 safeguard freedom of expression,171 art 10 doctrines are also applicable. This has – theoretically – a particular relevance in cases of political protest: as according to the Strasbourg jurisprudence political speech, or, public debate related to issues of public interest enjoy a strong protection,172 the same should apply to political protests.173 The ECtHR is also aware of the specific characteristics of assemblies in enhancing the expressive potential of the lonely speaker or writer:174
[I]n qualifying a gathering of several people as an assembly, regard must be had to the fact that an assembly constitutes a specific form of communication of ideas, where the gathering of an indeterminate number of persons with the identifiable intention of being part of the communicative process can be in itself an intensive expression of an idea. The support for the idea in question is being expressed through the very presence of a group of people, particularly …. at a place accessible to the general public. Furthermore, an assembly may serve the exchange of ideas between the speakers and the participants, intentionally present, even if they disagree with the speakers.
Thus, freedom of assembly according to the ECHR furthers expressive values in several regards: it can be (i) about individual expression of the speakers; (ii) collective expression signifying (ii)a) the quantity of support for an idea, or (ii)b) support for the idea that the issue is worth discussing; finally, (iii) it enables exchange of ideas between supporters and dissenters.
As mentioned, in the United States, freedom (or the right) of assembly is – but for a very few, mainly early cases – missing from the dictionary of the Supreme Court,
171 One may wonder what else – besides the protection of expression of personal opinions – might be the objective of Article 11. The fact that it is left open by the Court, does not, in itself, lend support to the relation of freedom of assembly and constituent power
172 Oberschlick v. Austria (no. 1), Application no. 11662/85, Judgment of 23 May 1991, Series A no. 204, § 58: ‘[F]reedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.’
173 Cf. „The protection of opinions and the freedom to express them is one of the objectives of freedom of assembly and association enshrined in Article 11. […] In this connection it must be borne in mind that there is little scope under Article 10 § 2 for restrictions on political speech or on debate on questions of public interest.’ Öllinger v. Austria, Application no. 76900/01, Judgment of 29 June 2006, § 38.
174 Tatár and Fáber, above n Error! Bookmark not defined. at § 38.
53 which either simply talks about the First Amendment, or freedom of speech or sometimes expression in cases related to assemblies. Thus, the value of the demonstrations and protests are in general considered to be the same as that of free speech. One dissent at the Supreme Court argued that speech by conduct can actually convey a message more precisely than if told in words. In the sleeping tent (demonstration for homeless persons) case Justice Marshall – joined by Justice Brennan – quoted Judge Edwards from the D.C.
circuit:175
By using sleep as an integral part of their mode of protest, respondents ‘can express with their bodies the poignancy of their plight. They can physically demonstrate the neglect from which they suffer with an articulateness even Dickens could not match.’
This point of view, rejected by the majority, rightly emphasises an important and valuable feature of protest demonstrations which is lacking in other ‘forms of speech’:
that re-enactment and concrete, even theatrical display are not only more apt to induce empathy and emotions, but also more precisely express, because more directly re-present and demonstrate a particular issue, draws attention to a situation of crisis in our common life, and makes it comprehensible. This has always been a characteristic potential of protest and demonstration, and this potential deserves principled recognition in law as well.
However, too often this potential is ignored by law, even constitutional and human rights law because of a forced doctrinal split into content and modality, and a satisfaction with requiring state neutrality only as to content. Such is the case in the US and Germany, while in the other countries the argumentation is not even transparent enough to clarify the court’s view in this regard.
The ECtHR appears to be the only court which by attributing expressive values to the mentioned aspects of assemblies does not lower the standard of review. When the clash in this regard between ECtHR and national jurisdictions will be exposed openly is
175 Community for Creative Non-Violence v. Watt, 227 U.S. App. D.C. 19, 34, 703 F.2d 586, 601 (1983) (Edwards, J. concurring). At 468 U.S. 288, 306, Clark v. Community For Creative Non-Violence, Marshall and Brennan JJ, dissenting.
54 hard to tell, but it might transform assembly law fundamentally. So far, however, this clash potential appears to be dormant.
Therefore, strangely, even though freedom of assembly is often protected in the language of freedom of expression in courts, de facto this reference to expression does not necessarily benefit the demonstrator, as it will be visible in the chapter on time, manner, and place restrictions. Non-intellectual, physical, material, including ritualistic or theatrical moments of assemblies get read out from the enhanced constitutional protection by denying them the quality of ‘expression’. In other words, the protection accorded to assemblies also mirrors what counts as expression in the eyes of judges. An argumentative essay, with rationally supported facts and conclusions, ie what a scholarly or judicial piece is supposed to be, is certainly more worthy of protection under this standpoint than a messy protest where people want to sleep in a park. Reading the decisions on assembly by having in mind argumentative essay as the paradigmatic case of expression explains many of the apparent inconsistencies, and deliberately weakened jurisprudential standards, which are then unsurprisingly inadequate to protect the specific potentials of assembly.