The Right to Freedom of Assembly: A Comparative Study

by Orsolya Salát

Overview

In legal decisions and commentary, freedom of assembly is widely cherished as a precious human right and as indispensable for the preservation of democratic governance. But despite this rhetoric assemblies are subject to extensive regulation, such as prior restraints, and restrictions on the time, place and manner of assemblies.

This comparative study examines five influential jurisdictions and reveals similarities and inconsistencies between them. It finds that freedom of assembly is often subjugated to freedom of expression in a way that disregards the expressive potential of assemblies. The shortcomings include the misconstrued content neutrality and public forum doctrines in the US, blanket bans and other restrictions based on intangible and distant harm in the UK, preventative restrictions and viewpoint discrimination in Germany, and the uncertain status of freedom of assembly and opaque judicial reasoning in France. Such inconsistencies also present challenges for the European Court of Human Rights in developing a coherent assembly doctrine. The book argues that it is time for jurisprudence to move away from a narrowly focused concept of expression, and recognise the creative and expressive value of freedom of assembly.

Product Details

ISBN-13:	9781509916016
Publisher:	Bloomsbury Academic
Publication date:	08/24/2017
Series:	Hart Studies in Comparative Public Law , #6
Pages:	314
Product dimensions:	6.14(w) x 9.21(h) x 0.66(d)

About the Author

Orsolya Salát is an Assistant Professor of Human Rights and Comparative Constitutional Law at the ELTE University, Faculty for Social Sciences, Budapest.

Table of Contents

Acknowledgements v

Introduction 1

I The Challenge of Freedom of Assembly 1

II A Concept of Assembly 3

III Structure 8

Chapter 1 Origins, Forms and Values 10

I Historical Origins of the Right to Freedom of Assembly 10

II Meeting, Marching or Speaking: Forms of Assembly 19

A United Kingdom: Stationary and Moving Assemblies 19

B France: Réunion and Manifestation 20

C United States: Expressivity Discounted by 'Forum' and 'Action' 26

D The European Court of Human Rights: Subsidiarity and Functionality 29

E Germany: Assembly and Demonstration 32

i Narrow, Enlarged or Wide Notion of Assembly 32

ii Demonstration and the Relation Between Freedom of Assembly and Freedom of Opinion 35

III Fundamental Right, or 'Mere' Common Law Liberty 39

IV The Value of Freedom of Assembly: Contemporary Judicial Rationales 43

A Expression-related Values 44

B Democracy-related Values 47

i 'Inherent in the Form of Republican Government' 47

ii 'A Moment of Original, Untamed, Direct Democracy' 48

iii 'Formation of Political Will and Opinion in a Representative Democracy'-Stabilising Role? 49

iv 'Essential to the Poorly Financed Causes of Little People' 50

v Self-governance and Democracy Arguments in Free Speech Jurisprudence Applied to Assemblies 51

C The Value of Liberty 53

Chapter 2 Prior Restraints, Exemptions and Bargain 55

I Prior Restraint in General 55

II Advance Notice or Permit 58

A United States: Proprietary Theory, Fight Against Vagueness and the Turn to Content-neutrality 58

i Governmental Property versus Vagueness 58

ii From Non-discrimination to Content-neutrality: How Prior Restraint Becomes Content-neutral Injunction 69

B Germany: Only Notice and Strict Proportionality 72

C United Kingdom: Notice Only for Processions 73

D France: Notice Only for Manifestations 74

E European Court of Human Rights: Both Permit and Notice in Theory Acceptable 76

III Prior Ban and Conditions 78

A United States: No Special Doctrinal Rules 79

B United Kingdom: Vague Conditions, Prohibited Zone, Loose Review and the Human Rights Act 79

C France: Substantive Values as Troubles to Public Order and Proportionality 87

D Germany: Graduality of Cooperation, Conditions and Ban 94

E European Court of Human Rights: Strong Substantive and Procedural Protection 95

IV Exemptions, Derogations from the Notification Requirement 98

A Traditional Processions: Content Discrimination or a Reasonable Exception? 98

B Spontaneous and 'Urgent' Assemblies 102

Chapter 3 From Violence to Public Disorder to Crime Prevention 107

I The Peacefulness Requirement: A Determinant of Scope or a Limit 107

A Germany: Peaceful and Without Arms 108

B United States: No Ban on Guns 109

C United Kingdom: Not a Thematised Separate Question 111

D France: Attroupement and Group Violence 111

E European Court of Human Rights: Systematic, Intentional Violence 113

II The Would-be Disorderly: judicial Doctrines of Risk-assessment 115

A Differently Dangerous Demonstrators 115

i United States: Imminence, Likelihood 115

ii Germany: Direct Endangerment, but Low Probability Standard 117

iii United Kingdom: Unclarity as to Imminence 121

iv France: Proportionality Unclarified 127

v European Court of Human Rights: Disorder Concept in Flux, Probability Unclarified 128

B Hostile Audience, Counter-demonstration 133

i Fighting Words 133

ii Heckler's Veto and Heckler's Speech 136

iii Counter-demonstration 141

Chapter 4 From Coercion to Direct Action to Disruption 149

I Nötigung in Germany 149

II United Kingdom: Disruption, Obstruction and Many More 153

III United States: Inconsistency Masked by Content-neutrality 161

IV France: Pressure Inherent in Strike 166

V European Court of Human Rights: No Violation 167

Chapter 5 Dignity as Peace, Truth and Love 169

I Germany: Dignity and its Substitute 'Public Peace' 169

II France: Dignity as Public Order and Officially Declared Truth 183

III United States: Dignity as Non-Argument 187

IV United Kingdom: Dignity Under Different Names 189

V European Court of Human Rights: Hate Speech Chaos 191

Chapter 6 Restrictions on the Time 194

I Special Days of the Year: The Notion of Public Order in Germany 194

II Duration, Time Limit, Frequency 197

Chapter 7 Restrictions on the Manner 200

I Banned and Protected Symbols: Whose Identity? 200

A Symbolic Speech in the United States 201

B Banned Signs in Germany and France 208

i Germany 208

ii France 211

C Flag Disparagement in Germany and France 212

i Germany 212

ii France 217

D Banned Signs and Flag Desecration in the United Kingdom 219

E European Court of Human Rights: The Red Star Cases 220

II Uniforms and Masks: Whose Fear? 222

A Uniforms 222

i United Kingdom 223

ii Germany 224

iii France 227

B Masks 227

i United Kingdom 228

ii Germany 228

iii France 231

iv United States 234

III One Man's Noise is Another's Music 237

IV Modes and Means of Protest as Aesthetic Harm 243

A United States 244

B Germany 250

C United Kingdom 252

D European Court of Human Rights 253

Chapter 8 Restrictions on the Place 254

I Private Public Places 255

A Cemeteries 255

B Clinics 259

C Residence 262

D Malls and Airports 263

II Governmental Buildings: Managerial or Authoritarian Protection? 269

III Memorial Sites: Identity Fight over Collective Memory 278

IV Designated Zones: Speech Pens, Protest Cages 281

Conclusion 283

I Specific Comparative Findings 283

A Forms and Values of Assembly 283

B Prior Restraints 285

C Peacefulness, Prevention of Violence and Disorder 288

D Coercion, Direct Action and Disruption 289

E Dignity 290

F Time, Manner and Place 290

II General Evaluation and Suggestions 291

Index 297