Abstract

Public protests from Occupy to Ferguson have highlighted anew the offense of unlawful assembly. This Article advances the simple but important thesis that contemporary understandings of unlawful assembly cede too much discretion to law enforcement by neglecting earlier statutory and common law elements that once constrained liability. Current laws also ignore important First Amendment norms intended to provide “breathing space” for expressive activity. In doing so, these laws fall short of the aspirations of the First Amendment by stifling dissent, muting expression, and ultimately weakening the democratic experiment. We can do better. We can start by reclaiming a more measured approach to unlawful assembly that recognizes both constitutional and common sense limitations.

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