Self-governance and democracy arguments in free speech jurisprudence applied to assemblies

182 Martin v. City of Struthers, 319 U.S. 141 (1943) 146.

183 BVerfGE 69, 315, 346.

59 A final democracy-related rationale emerges actually from considering the relation between expression and assembly from an angle different from the one applied above as to the relation of assembly and expression.

Famously, general free speech doctrine of especially, but not exclusively the USSC relies strongly on a so-called self-government or democratic theory rationale for the protection of speech, which then is applicable to assemblies as well if they are considered expressive. It is not possible to discuss various interpretations of the self-governance speech theory of the USSC, interpretations vary strongly from Alexander Meiklejohn¹⁸⁴ to Robert Post¹⁸⁵ to Cass Sunstein¹⁸⁶ and many more,¹⁸⁷ all operating within the assumption that speech, especially on matters political is essential to foster and maintain a liberal democracy, and thus deserves special, enhanced legal protection. US political speech doctrine is well-known for explicitly furthering a conscious (and

‘fearless’) citizenry, transplanting Millian and Miltonian truth seeking arguments into constitutional jurisprudence. Justice Holmes’ Gitlow dissent also clearly underlies the idea that public speech should be able to translate into political action should the

‘dominant forces of the country’¹⁸⁸ so decide, as it is ‘the only meaning of free speech.’¹⁸⁹

Indeed many great free speech decisions based on one or the other democratic speech theory actually involved assemblies, even if that does not merit any legal recognition in the judgment itself. Justice Brandeis has written the famous Whitney

184 Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (Greenwood Press, 1960), Alexander Meiklejohn, ‘The First Amendment Is an Absolute’, 1961 Sup. Ct. Rev. 245 (1961).

185 Robert Post, ‘Community and the First Amendment’, 29 Ariz. St. L.J. 473 (1997), Robert Post, ‘Racist Speech, Democracy, and the First Amendment’, 32 Wm. & Mary L. Rev. 267 (1991), Robert Post,

‘Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse’, 64 U. Colo. L. Rev.

1109 (1993), Robert Post, ‘Recuperating First Amendment Doctrine’, 47 Stan. L. Rev.1249 (1995), Robert Post, ‘The Constitutional Status of Commercial Speech’, 48 UCLA L. Rev. 1 (2000).

186 Cass R. Sunstein, Democracy and the Problem of Free Speech, 2^nd edn (New York, Free Press, 1995).

187 Eg, Owen Fiss, The Irony of Free Speech (Cambridge, Harvard University Press, 1996). For an

overview of US speech theories, see Matthew D. Bunker, Critiquing Free Speech. First Amendment Theory and the Challenge of Interdisciplinarity (Mahwah, New Jersey, London, Lawrence Erlbaum Publishers, 2001).

188 Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes J. dissenting).

189 Ibid.

60 concurrence¹⁹⁰ to an assembly case, and most of the clear and present danger dissents of Holmes are about assemblies, only the regulations discussed were clearly content-based, and often aimed at ‘associational speech’. Brandenburg decades later which solidified the case law related to incitement was about a Klu-Klux-Klan assembly.

Justice Brandeis in Whitney is exceptional in that he articulates a positive or affirmative principle; the ideal of civil courage which since then underlies much of First Amendment jurisprudence, as Vincent Blasi¹⁹¹ has shown. But the concurrence is also remarkable as it does refer to assembly next to speech, a rare case. Clearly, Justice Brandeis understood assemblies as deliberative meetings where reasoned argument might prevail, a view somewhat inapplicable to demonstrations which tend to only assert a stance or thematise an issue, and are less dialogical and discussing. On the other hand, mass hysteria according to him originates not from people assembling, but from government as manifest in the paranoia of the Red Scare.¹⁹² Thus, I still think Justice Brandeis would apply a very similar reasoning to demonstrations as well, because demonstrations are even more clearly practices of civil courage, and are the essential occasions to prevent falling into public ‘inertia.’

As discussed above (the relation between expression and assembly), the ECtHR also strongly endorses a democratic rationale of art 10 which then gets applied to assemblies as well.

The Conseil Constitutionnel has not elaborated on this issue, but the collectivisation of arts 10 and 11 of the individualistic DDHC in the decision constitutionalising freedom of demonstration is certainly in line with an (untheorised or unspoken) democracy rationale of the mediating sort. Indeed this would be not surprising as the Conseil has rejected Le Chapelier traditions in relation to associations much earlier.¹⁹³ Thus, – as a lesser danger – it is logical to also cease considering assemblies as

190 Whitney v. California, 274 U.S. 357 (1927). See also Vincent Blasi, ‘The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California’, 29 Wm. & M. L. Rev. 653 (1987)

191 Ibid.

192 See Blasi, Civic Courage, above n 190 at 386 with reference to Pierce v. United States, 252 U.S. 239, 269 (1920) (Brandeis, J., dissenting); Schaefer v. United States, 251 U.S. 466, 482-83 (1920) (Brandeis J., dissenting).

193 Décision n° 71-44 DC du 16 juillet 1971, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d'association

http://www.conseil-constitutionnel.fr/conseil- constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/1971/71-44-dc/decision-n-71-44-dc-du-16-juillet-1971.7217.html

61 obstacles to and confounders of the full expression of the general will in the loi. It might be all the more so as there is no mentioning whatsoever of the sovereign in decisions relating to demonstration or réunions. Any parallel to the German idea of similarity with referenda is excluded also because of the jurisprudence of the Council to de Gaulle’s constitution amending (and violating) referendum which was found to be indeed the original, untamed, direct voice of the sovereign.¹⁹⁴

To sum up, democracy rationales proposed by the courts differ from each other. A large number of rationales consider assemblies as providing a mediating platform between the people (minority, majority, the non-powerful ordinary citizens, etc.) and government, or in other words, public opinion and governmental decision-making, including lawmaking. It varies from court to court or even case to case if assembly is considered important for self-government because it provides an expressive means for the poor, those lacking access to media or more because assemblies are occasions for deliberation or because they signal discontent to government, etc.

Not exactly in these words, but the formation argument of the German court clearly emphasises the agenda setting function of assemblies, too, and might also refer to the potential of assemblies to provide forum of crystallisation for emerging political forces. The reverse, self-government theory of speech actually first characterises something as speech, and then explains its high protection by its instrumentality to further self-governance.

At the other end of the spectrum there is only the idea of the untamed direct democracy mentioned in Brokdorf, the opposite of the representative, mediating rationales.