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  • Rob Werking

Right to Peacefully Assemble is Federal and State Right

In 1934, Colorado was in the midst of the “dust bowl” which decimated agricultural production. The world economy had virtually stopped and this year would be statistically the worst year of the Great Depression (22% unemployment). John Dillinger was killed by the FBI outside the Biograph Theater in Chicago, Illinois, while Bonnie and Clyde were killed in Louisiana. Adolph Hitler declared himself to be leader or “fuhrer” of Germany and Mao Zedong began his ascent into power during the Long March.

As these events were unfolding around the world, the Portland Police were involved in very bloody confrontations with striking union longshoremen (the workers who load and unload ships). After numerous incidents of “police brutality” as perceived by the longshoremen, the longshoreman gathered to protest this abuse. Make no mistake, this was a protest regarding the workers treatment by law enforcement and there were no acts of violence reported.

Dirk De Jonge was a member of the Communist Party. He, as well as others, organized and spoke at one of these protests to a crowed of approximately 150 to 300 persons. Mr. De Jonge spoke about the poor conditions in the jail, and the actions of the police in addition to his belief the police were attacking the longshoreman in an effort to provoke a dispute between the unionized workers and the Communist Party.

Following the speech, Mr. De Jonge was arrested for a violating the 1930 Oregon Criminal Syndicalism Act. This act made it a felony for “any person to become a member of any society or assemblage of persons which teaches or advocates the doctrine of criminal syndicalism.” The doctrine of Criminal Syndicalism refers to “advocates crime, physical violence, sabotage, or any unlawful acts of methods as a means of accomplishing or effecting industrial or political change or revolution.”

Following his arrest, Mr. De Jonge was found guilty of Criminal Syndicalism and sentenced to seven (7) years in prison. Eventually, the case was appealed to the United States Supreme Court. The question for the Court was whether the states could penalize persons who participate in a public meeting, otherwise lawful, even if the content of the speech could have a tendency to incite violence or other unlawful acts to effect political change or even revolution.

The Supreme Court found that the State of Oregon violated Mr. De Jonge’s due process rights when it arrested him. The Court held, “the Oregon statute, as applied to the particular charge as defined by the state court, is repugnant to the due process clause of the Fourteenth Amendment. The judgment of conviction is reversed …”. De Jonge v. Oregon, 299 U.S. 353 at 366 (1937). In summary, the Supreme Court found that the 1st Amendment’s Right to Assemble (which previously only applied to the federal government) was made applicable onto the state governments by the DUE PROCESS clause of the 14th Amendment. Therefore, the Right to Assemble, perhaps more aptly phrased the Right to Peaceably Assemble, as found in the 1stAmendment protects individuals from state prosecution through the 14th Amendment. ***Incorporation theory is well beyond this blog.

The speech at issue was deemed to be offensive at the time (1934). However, even if reasonable people do not like the content of the speech, the assembly and content of the speech is protected. The government may not prohibit peaceful gatherings of person who want to change the current state of politics in the U.S. or even advocate for a revolution.

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