The Membership Crime Origin of the First Amendment

Abstract

It is commonly accepted that the World War I era hosted the advent of substantive First Amendment speech rights. Contemporary emerging scholarship on the assembly right, in turn, laments the underdevelopment of that right. This Article contributes to that scholarship by retrieving a First Amendment history of the World War I era that focuses on the assembly right, rather than speech. It shows that, contrary to the accepted view, assembly was just as salient a right in that era as speech was because the major cases involved “membership crime” — criminal conspiracy in federal and state courts, and criminal syndicalism at the state level — whose function and purpose was socio-political control of groups. Membership crime generated the substantive First Amendment speech right, but it should have also generated a robust assembly right.