“Dangerous to the Liberties of a Free People: Secret Societies and the Right to Assemble” by Nathan Ristuccia in the Journal of Free Speech Law

Just-published article with Abstract: “Americans in the eighteenth and nineteenth centuries have feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an oppressive force. Despite this hostility, 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 examines the discourse around secret societies at America’s founding and the time the Fourteenth Amendment was ratified. It shows that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.”

The Introduction: “In 1875, a convention in Raleigh, North Carolina sought to gut the state’s 1868 Reconstruction constitution. Two amendments in the final document targeted political violence of the Reconstruction era by cutting back individual rights that dated to North Carolina’s original 1776 constitution. The amendments aimed to crush the Republican political apparatus, showing how they understood the older 1776 text. \n\nThe U.S. Supreme Court has recognized a First Amendment right to anonymous assembly since the 1940s. Although there is no per se anonymity right, disclosure requirements must survive. Laws hindering anonymity interfere with freedom of assembly. Despite pronouncements in support of anonymous assembly, the Supreme Court has seldom mentioned the Assembly Clause. But a different model will convey a different scope and purpose. Secret assembly was vital.”

This article was first published in Reason.com.