Liberty's Refuge: The Forgotten Freedom of Assembly

Faculty Division

Event Video

Ask Americans what they think the First Amendment protects, and they will tell you “freedom of speech.” Some will also mention “freedom of religion.” But few if any will think of “freedom of assembly.” In his provocative new book, “Liberty’s Refuge, The Forgotten Freedom of Assembly,” Washington University School of Law’s John Inazu argues that this is an important loss.

During the past decade, courts have struggled to reconcile anti-discrimination statutes with claims by private organizations to First Amendment protection for decisions regarding their missions and membership. Can the Boy Scouts expel a gay Scoutmaster? (Boy Scouts of America v. Dale) Can a state law school deny official recognition to a religious club that requires members to affirm certain beliefs regarding homosexuality? (Christian Legal Society v. Martinez) In resolving these questions courts have frequently invoked the freedom of "expressive association," a phrase that appears nowhere in the text of the First Amendment but has been a part of judicial doctrine since the mid-twentieth century. Professor Inazu argues that this "expressive association" mode of analysis is at least in part responsible for what he argues is inadequate protection for associational autonomy--and that a return to the more textually and historically grounded "right of the people peaceably to assemble" is necessary to recapture the benefits of a meaningful pluralism. The Constitution contemplated forcefully dissenting political and expressive groups that would serve as a check on majority rule’s tendency to turn into a force for stifling conformity. To maintain an environment in which these groups will flourish, Inazu contends, our First Amendment jurisprudence must recover a more robust conception of associational autonomy grounded in a better understanding of the centrality and breadth of the assembly right.

Is a more robust conception of associational autonomy desirable? Is it what the Constitution contemplates What about the rights of individuals or groups excluded from participation as a result of private discrimination What is the proper balance between social equality and organizational autonomy? Join the Federalist Society and the American Enterprise Institute as we explore these and other questions in a panel discussion of John Inazu’s thoughtful new book.


  • John Inazu, Washington University Law School
  • Douglas Laycock, University of Virginia School of Law
  • David Bernstein, George Mason University School of Law
  • Moderator: Hon. Janice Rogers Brown, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society