A RIGHT OF PEACEABLE ASSEMBLY - Columbia Law Review

The functional absence of the Assembly Clause in First Amendment law and constitutional discourse fundamentally distorts our analysis of the proper scope of constitutional protection for political assemblies. This Symposium Piece develops a much-needed independent Assembly Clause doctrine. An independent Assembly Clause doctrine would not only be consistent with the text and original understanding of the Founders but also allow for a jurisprudence capable of distinguishing between protected and unprotected assemblies in relation to assembly’s distinct contribution to self-governance. The Piece recognizes that legal recognition of assembly as a textual right troubles the speech–conduct distinction that lies at the heart of contemporary First Amendment jurisprudence and upends existing determinations about the proper scope of constitutional protection for those who gather in public for political ends. The fact is, however, that the First Amendment explicitly protects a certain form of conduct (peaceable assembly), and it does so for good reasons (assemblies further liberal democracy in both instrumental and non-instrumental ways). This Piece, therefore, lays out a roadmap for an independent Assembly Clause doctrine capable of providing more appropriate constitutional protection, accounting for both assembly’s value and its social costs.

The full text of this Article can be found by clicking the PDF link to the left.

* Professor of Law, Drexel University Thomas R. Kline School of Law. I would like to extend a special thanks to Kristina Daugirdas, RonNell Andersen Jones, Jeremy Kessler, David Pozen, and Timothy Zick for their thoughtful comments on earlier drafts as well as my research assistant, Emma Austin. I also owe a debt to the members of the Columbia Law Review, most especially Abigail George and Shaunak M. Puri, and their extraordinary Symposium. This Symposium Piece would not be where it is without the excellent and constant support of Jessa Feiler.

Introduction

We are living in an age of protest. Social, political, and technological conditions—from economic inequality and partisan polarization to the development of social media and a deadly pandemic—have converged in the past two decades to afford new salience to public assembly as a central tactic of politics in the United States and abroad. 1 See Tabatha Abu El-Haj, Defining Nonviolence as a Matter of Law and Politics, in Nomos LXII: Protest and Dissent 201, 201 (Melissa Schwartzberg ed., 2020) [hereinafter Abu El-Haj, Defining Nonviolence] (describing the recent reinvigoration of disruptive protests). The wave of pro-Palestinian, antigenocide campus protests in 2023 and 2024 is the most recent manifestation of this renewed interest in a contentious form of outdoor politics that started in the United States with Occupy Wall Street (Occupy) in 2011. 2 See Andrew Ross Sorkin, Occupy Wall Street: A Frenzy that Fizzled, N.Y. Times: Dealbook (Sept. 17, 2012), https://archive.nytimes.com/dealbook.nytimes.com/2012/09/
17/occupy-wall-street-a-frenzy-that-fizzled/ [https://perma.cc/2WKE-WTE9] (“A year ago this week, the Occupy Wall Street movement got under way in Zuccotti Park in Lower Manhattan.”); Michael Wines, In Campus Protests Over Gaza, Echoes of Outcry Over Vietnam, N.Y. Times (Dec. 24, 2023), https://www.nytimes.com/2023/12/24/us/gaza-vietnam-student-protest.html (on file with the Columbia Law Review) (noting that “a sustained antiwar protest like the one against the Gaza invasion has not been seen for decades”).

Yet, despite the First Amendment’s explicit guarantee, 3 See U.S. Const. amend. I (providing for “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”). those who gather in the United States, on campus and off, are functionally left without a constitutional right to assemble. The Assembly Clause has no independent significance in contemporary First Amendment doctrine. 4 See McDonald v. Smith, 472 U.S. 479, 489–90 (1985) (Brennan, J., concurring) (“The Court previously has emphasized the essential unity of the First Amendment’sguarantees . . . .”); First Lutheran Church v. City of St. Paul, 326 F. Supp. 3d 745, 767 (D. Minn. 2018) (“In modern First Amendment law . . . there is no free-standing right to free assembly.”). The Supreme Court has not decided an important public protest case in decades. 5 The Court granted certiorari in Mckesson v. Doe, which involved an effort to impose tort liability on the organizer of a Black Lives Matter protest after a police officer was injured by an unidentified member of the crowd. 141 S. Ct. 48, 49–51 (2020) (per curiam). The Court did not, however, reach the merits of the First Amendment claim, sending the case back to the Fifth Circuit to certify a state tort law question to the Louisiana Supreme Court. Id. at 51. When the Court was subsequently asked to review the Fifth Circuit’s determination that civil liability could attach in ways arguably inconsistent with NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), it denied certiorari. See Mckesson v. Doe, 144 S. Ct. 913, 913–14 (2024) (mem.) (statement of Sotomayor, J., respecting the denial of certiorari) (expressing “no view about the merits of Mckesson’s claim” and suggesting that the Court’s recent decision in Counterman v. Colorado, which held that negligence is not the proper standard when it comes to political speech and that incitement requires intent, should govern “any future proceedings in this case”). And despite multiple forcible dispersals and thousands of arrests of nonviolent protesters, 6 The Washington Post found that in 2020, seventeen thousand individuals across more than fifty cities were arrested on nonviolent misdemeanor charges during the initial weeks of the George Floyd protests. Meryl Kornfield, Austin R. Ramsey, Jacob Wallace, Christopher Casey & Verónica Del Valle, Swept Up by Police, Wash. Post (Oct. 23, 2020), https://www.washingtonpost.com/graphics/2020/investigations/george-floyd-protesters-arrests/ (on file with the Columbia Law Review). These dispersals and arrests occurred even though the protests were overwhelmingly peaceful. See Erica Chenoweth & Jeremy Pressman, This Summer’s Black Lives Matter Protesters Were Overwhelmingly Peaceful, Our Research Finds, Wash. Post (Oct. 16, 2020), https://www.washingtonpost.com/politics/
2020/10/16/this-summers-black-lives-matter-protesters-were-overwhelming-peaceful-our-research-finds/ (on file with the Columbia Law Review) (reporting that 96.3% of BLM protests in 2020 involved no property damage and 97.7% involved no injuries to persons). Those arrested generally had their charges dropped. See Neil MacFarquhar, Why Charges Against Protesters Are Being Dismissed by the Thousands, N.Y. Times (Nov. 19, 2020), https://www.nytimes.com/2020/11/19/us/protests-lawsuits-arrests.html (on file with the Columbia Law Review) (last updated Feb. 11, 2021) (noting that “a vast majority of cases against protesters are being dismissed” and “[o]nly cases involving more substantial charges like property destruction or other violence remain”). no Occupy or Black Lives Matter (BLM) activist has won a case on the grounds that their right to peaceably assemble had been infringed. 7 See Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, 16 U. Pa. J. Const. L. 949, 963–67 (2014) [hereinafter Abu El-Haj, All Assemble] (describing the litigation around Occupy); Tabatha Abu El-Haj, Breathing Room for the Right of Assembly, 28 Wm. & Mary J. Race, Gender & Soc. Just. 29, 38–42 (2021) [hereinafter Abu El-Haj, Breathing Room] (summarizing the litigation after the BLM protests in 2020).

This is not to say that participants in outdoor assemblies lack First Amendment protection. 8 See Seth F. Kreimer, The ‘Weaponized’ First Amendment at the Marble Palace and the Firing Line: Reaction and Progressive Advocacy Before the Roberts Court and Lower Federal Courts, 72 Emory L.J. 1143, 1181–84 (2023) (reviewing a sample of cases decided between January 2020 and August 2021 in which a First Amendment claim was asserted and coding them as a “win” if the party prevailed on any issue, without disaggregating the First Amendment issues presented). For a further explanation of protesters’ First Amendment rights, see infra notes 139–180 and accompanying text. A quagmire of intersecting doctrines is available to those who organize and participate in political protests. It is rather to draw attention to the fact that these protections emerge from a doctrine that has conflated the First Amendment’s separate protections for freedom of speech and peaceable assembly out of a mistaken assumption that the value of assembly, like speech, is primarily expressive. 9 See Tabatha Abu El-Haj, How the Liberal First Amendment Under-Protects Democracy, 107 Minn. L. Rev. 529, 532 (2022) [hereinafter Abu El-Haj, Liberal First Amendment] (explaining how the Supreme Court’s “misconception that democracy is a product of political discussion rather than political participation” has led to a doctrine in which a “multifaceted Amendment” has been reduced to “a singular protection for free expression”).

A wholly expressive conception of assembly, however, weakens constitutional protection. 10 Tabatha Abu El-Haj, Assembly as Political Practice, in The Oxford Handbook of Peaceful Assembly 81, 84 (Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert & Sharath Srinivasan eds., forthcoming Aug. 2025) [hereinafter Abu El-Haj, Assembly as Political Practice]. When courts balance the inconvenience of protest against its contribution to public discourse, assembly inevitably loses. Assembling is not “behavior designed to advance the pursuit of truth.” 11 Keith E. Whittington, Speak Freely: Why Universities Must Defend Free Speech 105–06 (2019). There is little “reasoned disquisition[],” especially between opposing perspectives. 12 Abu El-Haj, Assembly as Political Practice, supra note 10, at 84. Thus, efforts to manage, even mute, assemblies often seem reasonable and justified. 13 See, e.g., C. Edwin Baker, Human Liberty and Freedom of Speech 125 (1989) (observing that it “is possibly the most universally accepted tenet of first amendment doctrine” that “[t]he constitutionality of regulating . . . assemblies and . . . the physical components of expressive conduct depends on the ‘reasonableness’ of a particular restriction”). Through an expressive lens, assembly’s value seems conceptual, its costs salient and material, especially in the face of concerns for public order (however speculative). Protesters can surely find less disruptive ways to contribute to the marketplace of ideas.

Protesters fare no better when assembly’s value is measured in terms of its instrumental political returns because, as with most political acts, such returns are highly uncertain. 14 Cf. Zeynep Tufekci, Opinion, How the Powerful Outmaneuvered the American Protest Movement, N.Y. Times (Sept. 21, 2024), https://www.nytimes.com/2024/09/
21/opinion/campus-protests-internet-america.html (on file with the Columbia Law Review) (observing that “as much as it pains me to say it, protesting just doesn’t get results anymore,” as the anti–World Trade Organization and Occupy movements show). First Amendment law and discourse are thus perpetually preoccupied with the costs of assembly in ways that fundamentally distort the analysis of the proper scope of constitutional protection, and those who engage in political protests are left to seek constitutional protection under doctrines designed to protect values other than those of assembly.

Assembly looks different when considered as a social, not discursive, practice. 15 See infra notes 264–287 and accompanying text. Assemblies are not primarily about ideas. The decision to appear in public is often first and foremost a claim to civic inclusion and recognition. When students show up or walk out, wearing keffiyehs and flying the Palestinian flag, chanting slogans (even offensive ones), they are demanding recognition. “We are here too!” they say. “Palestinians exist in Gaza. And our campus community includes Palestinians, Muslims, Americans of Arab and South Asian descent, and Jews who do not support Israel!” Acts of assembling—in public but also in private to plan and organize—build social solidarity. They reinforce and forge new social ties, instill habits of civic and political engagement, and create social networks with political potential.

Being together physically and socially contributes to democracy in ways that are distinct from the contribution of public discourse. Influencing public decisionmaking requires translating ideas into political power through political acts, and assembly, as a social form of politics, builds the civic capacity for political action. 16 See Abu El-Haj, Assembly as Political Practice, supra note 10, at 85–87 (developing the case that the social nature of assembly encourages participation in politics). When assemblies demonstrate mass, persistence, and authenticity, they have the power to disrupt political settlements and orthodoxies. 17 See Tufekci, supra note 14 (“[P]rotests and mass demonstrations of dissent are a necessary part of a healthy democracy.”). The protests that are the focus of this Symposium Piece were a form of political action. 18 See Abu El-Haj, Liberal First Amendment, supra note 9, at 534 (arguing that “[s]peech has never been the primary mechanism for demanding responsiveness” and that “[d]emocratic accountability and responsiveness, like social and political change, depend on political participation as conduct”). The national scope and persistence of student protests opposing Israel’s conduct of the war in Gaza disrupted the political discourse about Israel and placed strains on the Democratic coalition, even threatening to undermine the party’s electoral prospects with the emergence of a significant Uncommitted Movement. 19 See Khaled Elgindy, Opinion, The Case for Hope for Palestinians, N.Y. Times (Jan. 3, 2025), https://www.nytimes.com/2025/01/03/opinion/palestinians-israel-gaza.html (on file with the Columbia Law Review) (suggesting that “[t]he persistence of protests on university campuses across North America and Europe” both reflects and fuels “an international solidarity movement committed to Palestinian liberation” and “the global recognition of the justice of [the Palestinian] cause”); Camonghne Felix, Opinion, Uncommitted Achieved Its Goal in Making Gaza a Mainstream Issue, The Guardian (Nov. 18, 2024), https://www.theguardian.com/commentisfree/2024/nov/18/uncommitted-campaign-democrats-gaza-election [https://perma.cc/5GEB-PR4E] (describing the internal debates among Democrats over the impact of their party’s stance on Gaza in the wake of its electoral losses). Indeed, beyond the confines of campuses, and certainly outside of the United States, the true threat of allowing people to gather in great numbers is not that an assembly might descend into violence; it is that, like the Boston Tea Party, it will upend a political regime. 20 See Abu El-Haj, Assembly as Political Practice, supra note 10, at 89(arguing that “[a]ssembly as a form of social and political action [disrupts] public narratives, social and economic patterns, [and] political priorities,” sometimes even upending regimes). But again, the potential to build that power depends on the social solidarity and networks that arise from prior acts of assembling. 21 See id. at 91 (explaining how assembly’s capacity to reinforce social ties and solidarity means that “[a]ssemblies, great and small, reinforce the capacity for democratic politics and thereby hold open the path to political change on a transformative scale”).

Freed of the wholly expressive account of assembly, it becomes possible to understand why an independent Assembly Clause doctrine is warranted and could make a material difference for those who gather in public. First, renewed attention to the text of the First Amendment would involve remembering that it explicitly protects a particular form of conduct (peaceable assembly), thereby troubling the assumption in existing doctrine that assembly is a lesser form of expression because it is not pure speech. 22 See infra note 256 and accompanying text. Second, while the introduction of an independent Assembly Clause doctrine would not obviate the need to manage assembly’s social costs, it would provide a more coherent basis for distinguishing between protected and unprotected assemblies by using assembly’s distinct contribution to self-governance as the measure.

An independent Assembly Clause jurisprudence would start from the premise that all assemblies implicate the constitutional right of peaceable assembly. It would recognize that the collective activities of campus protesters—their walkouts, vigils, die-ins, and encampments—are instances in which individuals gather together as a group, thereby easily meeting the ordinary meaning of “assembly.” Jurisdictions that recognize assembly as an independent right generally define assembly as “the common presence of at least two persons in a common space at the same time.” 23 Orsolya Salát, The Right to Freedom of Assembly: A Comparative Study 3 (2015) (emphasis added); see also UN Hum. Rts. Comm., General Comment No. 37 (2020) on the Right of Peaceful Assembly (Article 21), ¶ 4, U.N. Doc. CCPR/C/GC/37 (Sept. 17, 2020) [hereinafter Committee, General Comment 37] (defining covered assemblies as “non-violent gathering[s] by persons for specific purposes, principally expressive ones”).

Coverage for particular assemblies would still have to be delineated, as would the scope of protection if covered. A BLM die-in at the Mall of America may be unprotected because it constitutes trespass; an effort to obstruct the construction of a pipeline may be unprotected because it is vandalism (violence to property); a student protester may have no constitutional protection from the decisions of private university administrators because only government actors are bound by the Constitution. Gatherings, in other words, might still fall outside the bounds of constitutional protection for a variety of reasons.

This Piece is about how those boundaries should be discerned. It is about the boundaries that currently exist and those that ought to exist. The claim is not that the introduction of an independent Assembly Clause doctrine would obviate the need to address tradeoffs or to draw lines: It is that, in making those determinations, we should closely track the approach of existing free speech jurisprudence. We should start with a robust defense of the value of assembly, rather than the preoccupation with its costs that pervades existing constitutional law and discourse.

The social costs of free speech are at least as concerning as those associated with outdoor assemblies. Misinformation, disinformation, and defamation of public figures take a significant toll on the functioning of our democratic institutions, while hate speech, doxing, and pornography, including revenge porn, harm individuals—frequently exacting an extra penalty on women and people of color. 24 See, e.g., Maria Pawelec, Deepfakes and Democracy (Theory): How Synthetic Audio-Visual Media for Disinformation and Hate Speech Threaten Core Democratic Functions, Digit. Soc’y, Sept. 8, 2022, at 1, 22–23 (arguing that deepfake pornography targets women and minorities for purposes of control); Gabriel R. Sanchez & Keesha Middlemass, Misinformation Is Eroding the Public’s Confidence in Democracy, Brookings Inst. (July 26, 2022), https://www.brookings.edu/articles/misinformation-is-eroding-the-publics-confidence-in-democracy/ [https://perma.cc/M9QF-FWHZ] (arguing that false claims of voter fraud are eroding voter confidence in democracy). Nevertheless, even as there is a robust academic debate about whether constitutional protection for free speech has gone too far, 25 See, e.g., Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 Colum. L. Rev. 1953, 1959–60, 1960 n.46 (2018) (criticizing the Court for using First Amendment jurisprudence to protect powerful interests at the expense of more vulnerable groups while noting that “[i]n keeping with the Symposium’s theme, we focus on free expression and largely bracket First Amendment jurisprudence relating to the freedoms of religion, press, assembly, and petition”). in the main, these harms are recognized as the transaction costs of a liberal democracy. Why? Because there is a well-developed and shared understanding of the value of free speech. The same is not true for assembly. The discounted constitutional protection protesters currently receive is driven by a misunderstanding about assembly’s contribution to democracy that leads to an exclusive stress on its costs. 26 See infra Part III. The importance, therefore, of developing a shared understanding of assembly’s value cannot be understated. Only by doing so can we restore meaningful constitutional protection for those who gather for political ends. 27 Existing speech doctrine eschews distinguishing between political and nonpolitical speech. This Piece’s emphasis on gatherings for political ends is meant only to illustrate how existing First Amendment doctrine impacts even those gatherings that no one would deny lie at the core of any reasonable construction of the First Amendment. Were courts to be persuaded to adopt a peaceable assembly doctrine, it might well extend to gatherings for nonpolitical ends, or it might not. Those questions are, however, beyond the scope of this Piece.

This Piece partakes of a limited turn in First Amendment scholarship to revive the right of assembly as an independent and distinct source of constitutional protection. 28 See John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 4–5 (2012) [hereinafter Inazu, Liberty’s Refuge] (arguing that the Assembly Clause textually grounds and also expands the contours of the right of association); Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. Rev. 543, 547, 586–89 (2009) [hereinafter Abu El-Haj, Neglected Right of Assembly] (arguing that “the right of assembly should not be collapsed into the right of free expression” given its “political origins and functions”); Nick Robinson & Elly Page, Protecting Dissent: The Freedom of Peaceful Assembly, Civil Disobedience, and Partial First Amendment Protection, 107 Cornell L. Rev. 229, 237 (2021) (arguing that the freedom of assembly clause is a vehicle to giving partial First Amendment protection to civil disobedience at demonstrations); see also Nicholas S. Brod, Note, Rethinking a Reinvigorated Right to Assemble, 63 Duke L.J. 155, 161–62 (2013) (criticizing the associational view of assembly for seeking to “blunt the force of antidiscrimination norms” and offering a textual and originalist argument that “the right to peaceably assemble is best understood as an assembly right, one that protects in-person, flesh-and-blood gatherings like protests”). This literature has, in turn, fueled a nascent litigation strategy to revive the right of assembly, primarily as a textual hook for the right of association. To date, the effort to ground the right of association in the Assembly Clause has had little success, despite indications that Justice Clarence Thomas is intrigued. Compare Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2390 (2021) (Thomas, J., concurring in part and concurring in the judgment) (“The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously.”), with Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 1016–21 (D.N.M. 2020) (concluding that the church was unlikely to succeed on the merits both because existing doctrine “has conflated the freedom of association with the freedom of assembly” and because the latter was originally a political right, which, like all rights, is “subject to restrictions”), and First Lutheran Church v. City of St. Paul, 326 F. Supp. 3d 745, 767 (D. Minn. 2018) (rejecting a challenge claiming that a zoning resolution establishing a twenty-person limit on a day shelter violated the Assembly Clause). It uses the management of, and public discourse surrounding, student protests opposing Israel’s conduct of the war in Gaza at Columbia University to illustrate the failures of existing First Amendment doctrine and to ground the discussion of how things might look different were the right of assembly to be given independent significance in legal analysis. 29 See infra sections III.E, IV.C and accompanying text.

Why campus protests? And why Columbia? Protests on college campuses are complicated by the unique attributes of higher education. 30 See, e.g., Stanley Fish, A Note to University Administrators, The Lamp (Apr. 26, 2024), https://thelampmagazine.com/blog/a-note-to-university-administrators [https://perma.cc/JTG4-A3WF] (decrying the public’s failure to recognize “that colleges and universities are not in the free speech business”). But see Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“[O]ur cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (emphasizing that “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large”). And it is also true that Columbia, like other private institutions, is not bound by the First Amendment. 31 See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019) (“[A] private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor.”). Still, the pro-Palestinian, antigenocide campus protests of 2023 and 2024 are a particularly good case study because they illuminate the distinct value of assembly as a political practice but also its social costs. The handling of the protests vividly illustrates the shortcomings of existing First Amendment doctrine while official explanations of university policy and public discourse surrounding those choices reveal just how ingrained two mistaken assumptions about assembly are: that First Amendment protection attaches to the expressive elements of assembly and that assembly is fundamentally disruptive and thus reasonably subject to regulation.

In addition, to the degree university administrators have become the target of congressional investigations in relation to their handling of these particular protests, the pro-Palestinian, antigenocide protests vindicate an underlying assumption of this Piece: namely, that constitutional discourse (the ideas generally held about what the First Amendment protects) matters because it reinforces not only constitutional doctrine but more importantly what people do voluntarily. Notably, during the 2023 to 2024 academic year, private universities did not seek to justify their actions on the grounds that they were not bound by the First Amendment or to argue that they should be entitled, as universities, in line with their educational mission, to limit protests that did not meet their educational commitments. 32 For the view that even public universities should not be bound by the First Amendment, see Robert C. Post, The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University, in The Free Speech Century 106, 106–22 (Lee C. Bollinger & Geoffrey R. Stone eds., 2019). Quite to the contrary, these institutions routinely justified their most controversial choices—suspending student groups, sanctioning student protesters, and calling in the police to disperse student encampments—as broadly congruent with First Amendment principles and law. 33 See, e.g., Columbia Univ., Charters and Statutes 137 (Apr. 6, 1959), https://secretary.columbia.edu/sites/default/files/content/University%20Charter_Statutes_May2024.pdf [https://perma.cc/RRB9-6598] [hereinafter Columbia Charters and Statutes] (last amended May 2024) (“Because of the University’s function as an incubator of ideas and viewpoints, the principle of free expression must be jealously guarded.”); see also Free Speech FAQs, Univ. of Pa., https://supporting-our-community.upenn.edu/
university-policies [https://perma.cc/JKJ8-RDW3] (last visited Feb. 3, 2025) (declaring that “[w]hile as a private institution we are not subject to the First Amendment, the University’s policies have embraced these values”). The mantra at private universities was and remains that their policies are coterminous with First Amendment principles. 34 This has changed somewhat. A fair read of the new policies adopted in summer 2024 and discussed in Part I is that private universities have taken up the mantra that protest’s disruption is orthogonal to the mission of the university. Cf. Whittington, supranote 11, at 95 (arguing that different forms of protest should be assessed relative to the university’s mission of “maintaining social spaces that allow for both vigorous protest and critical dialogue” while “allow[ing] for both the expression of grievances and argumentation . . . [and] inclusive participation” in “the productive exchange of ideas”).

It is thus the very complexity of the campus protests in opposition to Israel’s conduct of the war in Gaza that makes them an excellent case study not only for considering the shortcomings of existing First Amendment doctrine and constitutional discourse but also for imagining an independent right of assembly. This Piece proceeds as follows. Part I lays out a description of the events on campuses in the 2023 to 2024 academic year, using Columbia University as a case study. The description is designed to highlight both how university administrators’ responses to the events on campus raise questions about the current scope of First Amendment protection and illustrate the genuine complexity of the proper scope of the right. Part II turns to a description of existing First Amendment doctrine—not to be confused with contemporary doctrine on the right of assembly, which is nonexistent. It shows how the current doctrinal framework operates at every turn to tame assembly. It thus explains why Columbia’s choices would have been on solid constitutional footing had the University been bound by the First Amendment. Part III turns to the Piece’s central argument, offering an account of what the boundaries of First Amendment coverage and protection might look like were the right of assembly restored as an independent source of constitutional protection and its democratic contribution better understood. Part IV turns to more specific doctrinal implications.