Freedom of Assembly and Association
Freedom of Assembly and Association
As with many aspects of U.S. law, the freedoms of assembly and association in the United States draw heavily on English origins. The 1670 arrest of the founder of the Pennsylvania colony, William Penn (1644–1718), in London helped shape the first official right of association recognized within a state declaration of rights. Penn had been locked out of the Grace Church Street Friends Meetinghouse in London and forbidden to preach in any building in the city. Therefore, he preached in the street outside the hall to an orderly group of several hundred Quakers. He then was charged with unlawful assembly, disturbing the peace, and inciting a riot. Penn vigorously fought the charges against him as a thinly veiled attempt to silence his nonconformist religious views. Despite fines and imprisonment, the jury refused to find him guilty, and Penn took that experience with him to the newly formed state of Pennsylvania when he helped craft its declaration of rights in 1701.
In his 1776 work Fragments on Government Jeremy Bentham (1748–1832) described freedom of association as "the security with which malcontents may communicate their sentiments, concert their plans, and practice every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them" (Levy 1985, p. 167). In 1791, the year in which the U.S. Bill of Rights was adopted, Thomas Paine (1737–1809) published The Rights of Man. He wrote that "the end of all political associations is the preservation of the rights of man, which rights are liberty, property, and security" (Paine 1791). This premise, Paine asserted, became evident after the French and American revolutions renovated "the natural order of things [and discovered] a system of principles as universal as truth and the existence of man, and combining moral with political happiness and national prosperity" (Paine 1791).
"The distinctive conceptual feature of freedom of association is its hybrid character as both an individual and a collective right," according to the scholar Stephen Neff (Neff 1995, p. 1). In this view the right incorporates the individual right to associate casually with one individual and others, but it also provides the right to associate more permanently as a collectivity that has its own right to function effectively without undue government restraint. Such a right would encompass the right of an organization to raise funds and affiliate with other organizations to generate change.
application in the united states
Although the "right of the people peaceably to assemble" was incorporated into the U.S. Bill of Rights, the U.S. Constitution offers no explicit protection for a right of association. Instead, beginning in the twentieth century, U.S. courts led by the U.S. Supreme Court interpreted the First Amendment's guarantees of freedom of speech, assembly, and petition to include the affiliate right of free association. In 1958, for example, Justice John Marshall Harlan wrote, "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of 'liberty' … which embraces freedom of speech" (NAACP v. Alabama, at 460). In 1980 then Chief Justice Warren Burger noted that the right of association was among the "unarticulated rights … implicit in enumerated guarantees" of the Constitution (Richmond Newspapers v. Virginia, at 579).
The fundamental logic involved in providing constitutional protection to free association is that people must form relationships and affiliations to engage in free speech, express their ideas, advance shared interests, and participate effectively in political debate, oversight of government, and broad self-governance. Thus, the freedom to associate is a natural right that is both an extension and a foundation of free speech and the cornerstone of democratic participation. As the Supreme Court upheld in 1876, "The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs" (United States v. Cruikshank, at 552). And in 1960 Justice Potter Stewart wrote, "Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry" (Bates v. Little Rock, at 523).
Despite the vital role of association and assembly in a democracy, these rights are not absolute in the United States. In fact, the Supreme Court has stated consistently that when speech is intermingled with conduct, as when people gather to demonstrate, march, or picket on public roads or sidewalks, the conduct may be subject to reasonable regulations (usually as to time, place, and manner) designed to advance important government interests. The Court has determined that the right of individuals to assemble to share and express ideas must be balanced, for example, against countervailing government interests in community safety and the safe and efficient passage of cars and pedestrians. In addition, the personal right to privacy and freedom from harassment in the sanctity of one's own home or inside a health-care facility limits how and when people may assemble on adjoining public property. Because the courts' weighting of the competing interests is subject to political, economic, and social influences, the right to assemble in the United States is variable.
Like other First Amendment rights, the right to assemble is likely to contract during times of conflict and strife in the nation. However, the Supreme Court's assembly and association decisions often have protected unpopular groups as a source of alternative ideas and divergent voices. Also, the Court has held repeatedly "that publicly owned streets, sidewalks, and parks are so historically associated with the exercise of First Amendment rights that access to them for purposes of exercising such rights cannot be denied absolutely" (Lloyd Corp. v. Tanner 1972, at 559).
Beginning in the 1930s and continuing through the Cold War the Supreme Court's decisions related to the American Communist Party established the parameters of the right of individuals to associate with organizations the government deems subversive. In an early decision the Court struck down the conviction of an organizer and speaker at a Communist Party meeting in support of a maritime workers strike. The Court ruled in 1937 that the right of association provides an individual with the right to conduct meetings "for peaceable political action" and to belong to an organization that may advocate violence or illegal activity (DeJonge v. Oregon 1937, at 365). In subsequent cases the Supreme Court generally rejected the notion of guilt by association, holding that individuals may be punished only when they specifically intend to advance illegal goals through the organization.
This has not always assured that government would not punish individuals for mere membership in disfavored organizations. The Supreme Court, in fact, turned a blind eye to the pernicious reasons for state laws requiring both the Ku Klux Klan and the National Association for the Advancement of Colored People (NAACP) to disclose their lists of members. Without requiring evidence that the groups were engaged in illegal acts, the Court determined that the government could force disclosure of the names and addresses of group members to control the illegal activities of both groups.
Nevertheless, the Supreme Court twice refused to allow states to demand the names of NAACP members. The Court reasoned that disclosure constituted a type of official harassment and intimidation of the NAACP, then the leading black equal rights organization in the nation. Compelled membership disclosure, the Court said, violated the First Amendment rights of the members of this "wholly legitimate organization" (Gibson v. Florida Legislative Investigative Committee 1963, at 555) to freely and privately associate and chilled the likelihood that other groups would form to advance "dissident beliefs" (NAACP v. Alabama 1958, at 462). In 1982 the Court used similar reasoning to strike down a state law requiring the Socialist Workers Party to disclose the names of its donors. Many believe that the right of association in the United States protects the privacy of such lists, although the full impact of the USA Patriot Act (passed soon after the September 11, 2001, terrorist attacks) on this protection is unknown.
Supreme Court decisions on the rights of association and assembly may have been critical to the vitality and effectiveness of the civil rights movement and other groups advocating social change in the United States. In 1940, for example, the Court struck down a state ban on labor picketing. The decision in Thornhill v. Alabama acknowledged that picketing was an important means for labor to mobilize, counterbalance the power of business owners, and affect public attitudes and policy by publicizing the facts of a labor dispute. In the years since that time the Court has held that states have the authority to regulate the number of picketers, the volume of their chanting, the disruption caused by mass protests, and the economic harm of targeted pickets. However, the Court has determined that the Constitution prohibits an outright ban on demonstrations and protests because they are "indispensable to the effective and intelligent use of the processes of popular government" (quoting Thornhill v. Alabama 1940, at 103).
During the 1960s several Supreme Court rulings protected organizations and activities designed to advance racial equality and end de facto segregation in the South. In 1963, in NAACP v. Button, the Court said that states could not punish the NAACP for helping individuals find and pay for lawyers to fight racial discrimination. Virginia courts had ruled that this NAACP practice violated a state ban on legal solicitation. However, the Court asserted that the First Amendment protected the right of the NAACP and its members to express grievances and seek redress through orchestrated lawsuits. Indeed, the Court proffered such litigation as an essential and constitutionally protected means of expressing dissident political views.
The Supreme Court also relied on First Amendment protection for assembly and association to rule that states could not impose criminal sanctions for disturbing the peace against nonviolent, lawful civil rights assemblies. In 1961, for example, the Court in Garner v. Louisiana struck down the state breach-of-the-peace convictions of five blacks who had engaged in a peaceful sit-in at a whites-only lunch counter in Baton Rouge. In 1963 the Court overturned criminal sanctions imposed on black students who had marched peacefully on the statehouse carrying signs proclaiming, "Down with Segregation." In that case, Edwards v. South Carolina, the Court determined that the U.S. Constitution clearly and unequivocally protected "the peaceful expression of unpopular views."
At times, however, U.S. courts have allowed the government to punish disfavored groups and associations of minorities, aliens, and dissidents. Protection for associations ends when gatherings, parades, demonstrations, or pickets trespass on private property, destroy or vandalize property, or threaten the health and safety of individuals or communities. Critics assert that the right of association in the United States discriminates against the poor and the disenfranchised in favor of property owners. Such individuals cite the Supreme Court's 1988 decision holding that the government may ban picketing that targets individuals in their own homes. In 1988 in Frisby v. Schultz the Court determined that a city could ban picketing of residences that prohibited marching outside the home of an abortion provider. The Court stated that the privacy rights of "captive" homeowners who do not wish to hear the message of protesters outweigh the rights of "focused" picketers.
In the 1990s, amid bombings of abortion clinics and murders of abortion providers, the High Court ruled that laws establishing no-protest buffer zones around abortion facilities could limit the assembly and association rights of would-be protesters to protect the health and privacy of health-care clients. City and state governments also have imposed similar no-protest zones around political conventions, schools, courthouses, polling places, and meetings of the World Trade Organization, for example, as essential to protect the safety of congregating participants, prevent the destruction of property, and preserve peace and order. The Supreme Court has determined that such laws do not violate the Constitution because they regulate the location of speech and association and do not target or silence a specific group or idea.
naacp v. alabama
NAACP v. Alabama (357 U.S. 449, 1958) was a landmark civil rights case as well as an important decision regarding the freedoms of assembly and association. In 1956 the attorney general of Alabama sued the National Association for the Advancement of Colored People (NAACP), claiming that the organization had violated a state law requiring "foreign" corporations to qualify before doing business in Alabama. The NAACP believed that the 'state's suit violated its rights to freedom of assembly and freedom of speech. The state of Alabama also issued a subpoena for the 'NAACP's records, including the organization's bank statements and leases as well as a list of its Alabama members.
The NAACP appealed repeatedly to the United States Supreme Court until the justices finally agreed to consider the case. The court decided unanimously in favor of the NAACP on June 30, 1958. The opinion, delivered by Justice John Harlan II, held that forced disclosure of membership lists would violate the 'petitioners' rights to free association. Harlan went on to say that the freedom of people to associate with groups devoted to the "advancement of beliefs and ideas" is covered by the due process clause of the Fourteenth Amendment.
In the United States the right to associate sometimes—but only sometimes—encompasses the right not to associate. Freedom of association logically requires the right to determine with whom to join. Thus, the government generally cannot require individuals to associate with particular groups or ideologies without violating this freedom. This means that small private organizations that assume no public or quasi-public role have the right to exclude individuals who violate core tenets of the organization. The Court has ruled that the right to be free from undesired associations enables private owners of a shopping mall to prevent war protesters from distributing handbills in the mall. It allowed the Boy Scouts of America, a group that proclaims its foundation on religious principles, to expel an openly gay leader, and it held that the private organizers of the huge, annual, city-licensed St. Patrick's Day Parade in Boston could refuse to allow a gay-lesbian-bisexual association to participate. However, the Supreme Court also has ruled that the U.S. Jaycees (Junior Chamber of Commerce), a politically influential, historically male national organization whose members include many government officials and business owners, may not discriminate on the basis of gender. In a legal context the size and power of the association, as well as the nature of the discrimination, determine when an association may exclude certain individuals.
application around the world
All the primary international treaties on human rights guarantee the right of freedom to associate. The first of these international covenants was enacted in 1953. Article 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, which has been adopted by more than forty members of the Council of Europe (CoE), states that:
- Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interest.
- No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
richmond newspapers v. virginia
Richmond Newspapers v. Virginia (448 U.S. 555, 1980) was a case that involved public access to criminal trials. A trial judge in Virginia had closed a murder trial to reporters and the general public after three mistrials. The defense had asked for closure and the prosecution did not object. Two reporters on the staff of Richmond Newspapers then challenged the judge's action. The case came before the United States Supreme Court in February 1980. At issue was whether the closure of the trial was a violation of the First Amendment (freedom of speech) or the Sixth Amendment (right to a public trial in criminal cases).
The Court's 7-to-1 decision, handed down on July 2, 1980, was a landmark ruling because it extended the First Amendment's guarantee of freedom of speech to include the right of public and media access to government information, including access to the courtroom. The Supreme Court also noted that the First Amendment applied to the right to assembly in such public places as courtrooms. The majority opinion stated that "certain unarticulated rights" were implicitly contained in the guarantees listed in the Bill of Rights.
Similar regional conventions have been adopted in American states and African nations. The most recent international commitment to freedom of association, the UN Declaration on Human Rights Defenders adopted in 1999, establishes that "everyone has the right, individually and in association with others, at the national and international levels, to meet or assemble peacefully; to form, join and participate in non-governmental organizations, associations or groups; and to communicate with non-governmental or intergovernmental organizations." However, many believe that Article 22 of the International Covenant on Civil and Political Rights (ICCPR) is the "most important international human rights treaty dealing with freedom of association and assembly" (Irish and Simon 2001, p. 37). The ICCPR basically adopts the relevant language from the European Convention on the Protection of Human Rights and Fundamental Freedoms. The UN's International Labour Organization conventions also has made significant contributions to delineating these rights.
International laws define the freedom of association broadly as the right of individuals to join together in groups to pursue common goals. The Human Rights Committee, established under the ICCPR, interprets that international law in accordance with the Siracusa Principles adopted in 1984 by a panel of thirty-one international experts. The ICCPR allows restrictions on the freedom of association for certain narrow and clearly specified reasons. Freedom of association may be restricted only when its exercise poses a real, clear, immediate, and serious threat of harm to the nation, its territory, or its independence and when the restrictions are essential to ensuring the peaceful functioning of society.
Governments must justify any limits imposed on the freedom of association and may not use vague, arbitrary , or sweeping limits as a means to repress or suppress opposition. Limits should advance, not undermine, the basic democratic tenets of pluralism and tolerance, respond to a pressing public need, and be carefully tailored to impose only the restrictions necessary to address the specific cause of the limit. Accordingly, governments may abolish or ban a specific group or type of association only in the most extreme case and only after all less restrictive alternatives have been examined carefully and found to be inadequate.
Article 8 of the International Covenant on Economic, Social, and Cultural Rights goes a bit further. It recognizes that the simple right to form and join an association, specifically a trade union, is not sufficient without the right for that organization to "function freely." If governments must confer official "non-government organization" status on an association before it may enjoy certain legal benefits, for example, governments might use this power coercively. Thus, human rights groups suggest that registration requirements should be minimal and the registration process quick, simple, and reviewable.
Despite some concern in the early twenty-first century that governments were developing increasingly subtle and sophisticated methods to limit the freedom of association, an international group of experts that produces an annual study of the state of freedom in the world determined that the last three decades of the twentieth century witnessed "dramatic progress in the [worldwide] expansion of freedom and democratic governance" and growth in the number of nations that enjoy "a climate of respect for civil liberties [and] significant independent civic life" (Karatnycky 2003).
See also: Freedom of Expression.
Bentham, Jeremy. Fragments of Government (1776). London: University of London Athlone Press, 1977.
Brant, Irving. The Bill of Rights: Its Origin and Meaning. Indianapolis, IN: Bobbs-Merrill, 1965.
European Convention on the Protection of Human Rights and Fundamental Freedoms.<http://conventions.coe.int>.
Irish, Leon E., and Karla W. Simon. "Recent Developments Regarding the 'Neglected Right.' " American Society of International Law Human Rights Interest Group Newsletter 9, no. 1/2 (2001):37.
Joseph, Sarah, Jenny Schultz, and Melissa Castan. The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd ed. Oxford, UK: Oxford University Press, 2004.
Karatnycky, Adrian. Freedom in the World 2003: Liberty's Expansion in a Turbulent World: Thirty Years of the Survey of Freedom, 2003. <http://www.freedomhouse.org/research/freeworld/2002/webessay2003.pdf>.
Lawyers Committee for Human Rights. The Neglected Right: Freedom of Association in International Human Rights Law, 1997. <http://www.lchr.org/pubs/neglrt.htm>.
Levy, Leonard. Emergence of a Free Press. Oxford, UK: Oxford University Press, 1985.
Neff, Stephen. "Report of Mission to Egypt." Human Rights First 1 (November 1995):1–2.
Nowak, Manfred. UN Covenant on Civil and Political Rights: CCPR Commentary. Arlington, VA: N.P. Engel, 1993.
Paine, Thomas. The Rights of Man (1791). <http://www.infidels.org/library/historical/thomas_paine/rights_of_man/index.shtml>.
"Symposium: The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights." Human Rights Quarterly 7, no. 1 (Special Issue, February 1985):1–157.
UN General Assembly. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.RES.53.144.En?OpenDocument>.
Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968).
Bates v. Little Rock, 361 U.S. 516 (1960).
DeJonge v. Oregon, 299 U.S. 353 (1937).
Edwards v. South Carolina, 372 U.S. 229 (1963).
Frisby v. Schultz, 484 U.S. 1003 (1988).
Gibson v. Florida Legislative Investigative Committee, 372 U.S. 539 (1963).
Lloyd Corp. v. Tanner, 405 U.S. 1015 (1972).
NAACP v. Alabama, 357 U.S. 449 (1958).
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
Thornhill v. Alabama, 310 U.S. 88 (1940).
United States v. Cruikshank, 92 U.S. 542 (1876).
Susan Dente Ross