Journal of Free Speech Law: "'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble," by Nathan Ristuccia

This just-published article is here; the Abstract:

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America's founding and at the time the Four­teenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment's Assembly Clause originally protected the right to assemble in secret.

And the Introduction:

In the fall of 1875, a convention met in Raleigh, North Carolina, intending to gut the state's 1868 Reconstruction constitution. The convention's Democratic majority would have preferred to repeal the 1868 constitution altogether, written, as it was, by Black freedmen and Northern carpetbaggers and approved as a condition of the state's readmission to Congress. But elections had returned a 61–60 partisan split, so legislation forced the delegates to swear to amend the 1868 constitution, not abolish it. The delegates proposed thirty amendments—ratified the next year—which shifted power from local courts and county governments (often controlled by Blacks) to the securely Democratic General Assembly.

Two amendments, side by side in the final document, targeted the endemic political violence of the Reconstruction era by cutting back on individual rights that dated to North Carolina's original 1776 constitution. First, the delegates added a sentence to the pre-existing right to bear arms stating that "Nothing herein contained shall justify the practice of carrying concealed weapons, or prevent the Legislature from enacting penal statutes against said practice." Second, the state's assembly clause now read "[t]he people have a right to assemble together to consult for their common good, to instruct their representatives, and to apply to the Legislature for redress of grievances. But secret political societies are dangerous to the liberties of a free people, and should not be tolerated."

A present-day reader might assume that these additions were designed to quash the Ku Klux Klan. The opposite was true. During the 1860s and 1870s, North Carolina Democrats repeatedly denounced Republican secret societies such as the Heroes of America and the Union League, which formed to sabotage the Confederate war effort, defend freedmen, and mobilize Republican voters. After the war, these groups shifted from paramilitary activity to political organization, and they met in public when they could. Nonetheless, white southerners feared and hated them. For instance, one ex-Confederate politician maintained that the Republicans "operat[ed] chiefly through secret political societies … particularly among the blacks" although there was "no justification, at this time, for any secret political organization," violent or non-violent. For many Democrats, rumors about the threat of Republican secret societies made both Klan terrorism and the denial of Black assembly rights necessary.

North Carolina's 1875 convention, then, rewrote individual rights protections predating the federal Constitution in order to crush the Republican political apparatus. Most delegates plainly agreed with Justice Taney's infamous words that the South would never have consented to constitutions—federal or state—if they had known Blacks would be "recognized as citizens" with the same rights "to hold public meetings upon political affairs, and to keep and carry arms wherever they went," for how could southern leaders "have been so forgetful or regardless of their own safety"? Yet, by rewriting their constitution, the North Carolina delegates showed how they—like Taney—understood the older 1776 text. After all, North Carolina had passed a statute criminalizing "any oath-bound secret political or military organization" almost a decade earlier. There was no reason to amend the state constitution—unless the delegates thought this pre-existing statute was constitutionally suspect. Evidently, the North Carolina convention believed that the original assembly clause included the right to form anonymous political organizations with secret meetings, and that the original arms provision included the right of these groups to carry weapons in self-defense. Hence, they revised.

The U.S. Supreme Court has recognized a First Amendment right to anonymous assembly—that is, a right to gather clandestinely or in disguise and a related associational right to join non-violent groups that keep their memberships secret—since the 1940s. Although there is no per se anonymity right, disclosure requirements must survive exacting scrutiny. Thus, for instance, states can impose an "identification requirement" on professional fundraisers, but "[s]o long as no more is involved than exercise of the rights of free speech and free assembly," even small restraints such as mandatory identification are "petty tyrannies." According to the Court, laws hindering anonymity "interfere with freedom of assembly" and are "of the same order" as laws forcing Jews or Socialists to "wear identifying arm-bands." Oath-bound secret societies such as the Klan are an exception. If oath-bound societies are notorious for "acts of unlawful intimidation and violence," the state can then compel disclosure. Under contemporary doctrine, North Carolina's "secret societies" statute is facially unconstitutional but might be valid if narrowed to apply to violent societies alone—that is, to cover societies that habitually refuse to assemble peaceably.

Despite pronouncements in support of anonymous assembly, over the last forty years, the Supreme Court has seldom mentioned the Assembly Clause. The Court has been content to decide group membership cases on freedom of association grounds instead. In contrast, scholarship on the Assembly Clause abounds. But scholars often understand the Clause primarily as a protection for republican self-governance through public face-to-face gatherings. For many interpreters, the history of colonial Massachusetts and the tradition of New England town meetings supplies essential context for understanding freedom of assembly. As long as the models for assembly are Congregationalists electing their town's fence viewer or the Boston mob burning the king's effigy around the Liberty Tree, secret meetings will seem superfluous. But a different model will convey a different scope and purpose. For Union Leaguers gathering in fields at night and teaching special handshakes and passwords to initiated members for their own safety, secret assembly was vital.

This Article, therefore, examines secret assembly both at America's founding and at the time of the incorporation of the Assembly Clause through the Fourteenth Amendment. It demonstrates that the Supreme Court's key precedents on secret assembly were, for the most part, correctly decided. "The text and history of the Assembly Clause suggest that the right to assemble includes the right to associate anonymously," as one Justice recently concluded. Without the power to gather in secret, American dissenters cannot defend themselves from the despotic power of mass society. As the North Carolina delegates in 1875 understood, breaking the Republican Party meant prohibiting secret assembly. Liberty sometimes must go masked.