Bhagwat, Ashutosh A., Texas Law Review
Assembly Resurrected LIBERTY'S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY. By John D. Inazu. New Haven, Connecticut: Yale University Press, 2012. 288 pages. $55.00.
After a long period triggered by 9/11 and the Bush Administration's response to it, when constitutional law was focused on issues such as executive power and the Fourth Amendment, the First Amendment is back in the forefront of judicial and academic attention. In the past several years, the Supreme Court has issued a series of important, even path-breaking, decisions focused on the scope and limits of the freedom of speech.1 At the same time, academic attention has turned to the role that First Amendment freedoms, including freedoms other than free speech, play in our society. Important examples include Timothy Zick's Speech Out of Doors,2 which discusses the relationship between assembly, expression, and public places3 and Ronald Krotoszynski's Reclaiming the Petition Clause,4 which examines the role that the Petition Clause of the First Amendment can play in modern politics.5 We have also seen a flurry of recent law review articles examining the rights of association and assembly, and their relationship to democratic self-governance.6 These are, in short, exciting times for those interested in First Amendment freedoms and their place in the constitutional order.
John Inazu has jumped into this ferment with his book Liberty's Refuge: The Forgotten Freedom of Assembly.7 Liberty's Refuge is an excellent book with a dual agenda: one part descriptive and one part normative. The focus of the book is the right, delineated in the First Amendment, "of the people peaceably to assemble."8 Inazu begins by tracing the central role that the right of assembly played historically in political struggles and in public perceptions of the First Amendment, through the middle of the twentieth century.9 He then traces the gradual transformation of the right of assembly, explicitly listed in the text of the Constitution, into a nontextual right of "association" during the 1940s and 1950s, what he calls "the national security era,"10 as well as the narrowing of the right of association, combined with the complete abandonment of assembly as an independent right during the period beginning in the early 1960s, which he dubs "the equality era."11 These chapters constitute the descriptive, historical part of Liberty's Refuge, and they tell a novel and fascinating story. Inazu concludes, however, normatively, by making the case for the revival of freedom of assembly as a robust, independent constitutional right that will provide substantial protection to the internal composition and dynamics of groups. He argues, referring to several Supreme Court cases, that the modern right of association fails to provide such protection and criticizes this development as inconsistent with both the history and the purposes of the First Amendment.12 Finally, Inazu concludes by setting forth a "theory of assembly," which he argues would restore the freedom of assembly to its rightful place.13
There is much to admire in Liberty's Refuge. The history that Inazu recounts, and the story of doctrinal transformation that he tells, are fascinating and well worth the read. In addition, Inazu sets forth a compelling argument that the modern association right has failed in its primary purpose of protecting the group autonomy that must exist for effective democratic self-governance. I agree with much of what Inazu has to say in this regard. In Parts I and II of this Review I will summarize Inazu's thesis in more detail, pointing to its strengths as well as highlighting a few areas where I disagree. In Part III, I turn to another issue, which I believe is raised by aspects of Inazu's argument though not particularly explored, which is the relationship between the freedom of assembly and other provisions of the First Amendment. In particular, I look at the problem of religious groups and their role as "associations" or "assemblies" protected by the First Amendment. …