Freedom of Association and Assembly

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The right to associate with others for the purpose of engaging in constitutionally protected activities.

The right to associate is not an independent constitutional right but is derived from and dependent on the first amendment guarantees of freedom of speech and expression. It is protected only to the extent that it is asserted in conjunction with a First Amendment right. However, some legal scholars maintain that freedom of association is more fundamental than the rights enumerated in the Constitution because without it those other rights have little meaning.

One early case to recognize freedom of association was NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). In Patterson, the Supreme Court held that a lower court's order compelling the naacp to disclose records containing the names and addresses of its Alabama members violated the group's right to associate freely. The Court recognized freedom of association as an adjunct to the NAACP's free speech rights and held that the freedom to associate for the advancement of beliefs and ideas is inseparable from the freedom of speech.

General types of association unrelated to First Amendment rights are not protected by the Constitution. For instance, in City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989), the Court held that a city ordinance limiting adult entrance into teenage dance halls did not violate the associational rights of either the adults or the minors. The association of adults and minors in a social setting does not fall within the purview of any rights protected by the First Amendment and therefore is not a constitutionally protected activity.

The activities of groups organized to pursue economic activity are sometimes protected if the individuals have come together to advance beliefs or ideas. Generally, the Court's decisions in this area depend on whether the economic activities are found to be sufficiently expressive to invoke First Amendment protection. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982), the NAACP was held not liable for economic damage suffered by merchants in a boycott it had sponsored. The boycott was a legal, nonviolent action against white merchants to pressure them to comply with civil rights laws. The Court found that though clearly an economic activity, it was primarily designed to advance the NAACP's political beliefs in civil rights. This added purpose gave the boycott an expressive character sufficient to warrant First Amendment protection. On the other hand, an economic boycott that is not intended to express political ideas or beliefs is not protected under the First Amendment. In FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768, 107L. Ed. 2d 851 (1990), the Court found that a boycott organized by trial lawyers in an effort to secure increased compensation for their representation of indigent clients was a fundamentally economic activity that did not rise to the level of expressive conduct contemplated by the First Amendment.

During the 1940s and 1950s, a number of cases tested the constitutionality of the Alien Registration Act (also known as the smith act) (18 U.S.C.A. § 2385), which makes it a crime to conspire to overthrow the government or promote doctrines that advocate sedition. The act was sometimes used to prosecute individuals merely for their membership in organizations suspected of promoting insurrection. The general principle that evolved from these cases is that an individual cannot be punished for membership in an organization that is committed to illegal conduct, unless he or she is an active member with knowledge of the organization's illegal objectives and specific intent to further those objectives. (See Noto v. United States, 367 U.S. 290, 81 S. Ct. 1517, 6 L. Ed. 2d 836[1961]; Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 [1961]). This principle has also been applied to invalidate blanket prohibitions on government employment or membership in organizations such as a state bar because of an individual's past associations. The government may inquire into past associations but must limit the inquiry to the person's actual knowledge of illegal activity and intent to further it. (See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796[1957]; United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 [1967]).

The outcome of cases challenging indirect government regulation of freedom of association has been somewhat inconsistent. In general, the Court has balanced the individual's associational interests against the state's interests. In the early twentieth century, the Supreme Court held that a ku klux klan membership list had to be disclosed because the members' freedom of association was subordinate to the state's interest in controlling the Klan's illegal activities (New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184 [1928]). Similarly, in 1961 the Court upheld a forced disclosure of the Communist party's membership because of the perceived dangers posed by the party's activities (Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81S. Ct. 1357, 6 L. Ed. 2d 625 [1961]). Conversely, in 1958, in Patterson, the Court had struck down the state's order that the NAACP disclose its membership, distinguishing Bryant on the grounds that the Klan was involved in illegal activities, whereas the NAACP was not. A similar rationale was applied in Communist Party. In the late twentieth century, the Court moved away from the balancing approach toward a strict scrutiny standard that made it more difficult for the government to impinge indirectly on freedom of association.

In general, freedom of association includes the right to be free from compelled association. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual to support or espouse ideals or beliefs with which he or she disagrees. Similarly, in Keller v. State Bar, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990), the Court held that mandatory state bar membership dues could not be used to further ideological causes with which some members might disagree, unless the state could show that the expenditures were incurred for the purpose of regulating the legal profession or improving the quality of legal service.

When the right to be free from compelled association is exercised on the basis of race, gender, religion, or sexual orientation, competing constitutional rights clash. Such was the dilemma faced by the Court in roberts v. united states jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). The Jaycees is a national organization whose bylaws limited full membership to men age eighteen to thirty-five. When a group of women challenged their exclusion, this policy was held unconstitutional. The Court found that the state's interest in eliminating gender discrimination outweighed the male Jaycees' interest in freedom from compelled association. Although the Court reiterated its position that freedom of association is fundamental, it also stated that such freedom is not absolute: "Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."

During the late 1990s several lawsuits were filed against the Boy Scouts of America (BSA) contesting the BSA's rules against allowing gay scout leaders and troop members. In Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal.Rptr.2d 410 (1998), the California Supreme Court rejected a claim that the BSA violated a California anti-discrimination law. The key issue was whether the BSA was a business establishment and thus a place of public accommodation. Previous decisions had found that country clubs met this definition and were subject to the law.

The court ruled that the scout organization was not a place of public accommodation. It was true that the Boy Scouts conducted extensive business activities involving nonmembers through its retail shops and stores and through the licensing of its insignia. However, the court ruled that these business activities differed from those of a country club. The Boy Scouts are an "expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social-groups structure and activities are not comparable to those of a traditional place of public accommodation or amusement." Unlike the country club, the Boy Scouts did not sell to nonmembers "access to the basic activities or services offered by the organization." Nonmembers could not purchase entry to scout meetings, overnight hikes, the national jamboree, or to training and education programs.

As for the Boy Scout retail stores, the court found that while these were business establishments, the business transacted at these stores was "distinct from the Scouts' core functions" and did not demonstrate that the organization had become a "commercial purveyor of the primary incidents and benefits of membership of the organization." Therefore, the Boy Scouts were not a "public accommodation subject to the anti-discrimination law."

The U.S. Supreme Court ended the dispute over the BSA and gay membership in boy scouts of america v. dale, 530 U.S. 640, 120S.Ct. 2446, 147 L.Ed.2d 554 (2000). The New Jersey Supreme Court had ruled that the BSA had violated both the Roberts, decision and New Jersey anti-discrimination laws; it ordered the BSA to allow gay membership. The U.S. Supreme Court rejected this decision, finding that the state supreme court had mistakenly applied the Roberts decision when it should have applied Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115S.Ct. 2338, 132 L.Ed.2d 487 (1995). In Hurley, the Court ruled that the sponsor of Boston's St. Patrick's Day parade could not be forced to let a group of gays and lesbians participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include "a group imparting a message the organizers do not wish to convey." The Court, in a 5 to 4 decision, held that forcing the organization to accept gay troop leaders would violate the BSA rights of free expression and free association under the First Amendment. Thus, it accepted the BSA argument and rejected the New Jersey Supreme Court's application of public accommodations law to the case.

The Court has also recognized a constitutional right to freedom of intimate association, the fundamental human right to create and maintain intimate human relationships. Freedom of intimate association is generally included within the right of privacy as enunciated in cases such as griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), invalidating a state statute forbidding use of contraception; roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), holding a Texas law criminalizing abortion unconstitutional; and Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), holding limits on distribution of contraceptives and contraceptive information unconstitutional.

further readings

Edgar, Christopher R. 2002. "The Right to Freedom of Expressive Association and the Press." Stanford Law Review 55 (October).

Huget, J. Michael. 1985. "Roberts v. United States Jaycees: What Price Freedom of Association?" Detroit College of Law Review.

Jameson, Ann H. 1985. "Roberts v. United States Jaycees: Discriminatory Membership Policy…." Catholic University Law Review 34 (summer).

Moegenburg, Julia A. 1989. "Freedom of Association and the Private Club." Marquette Law Review 72 (spring).


Club; Communism; NAACP.

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