Guilt By Association

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The United States Supreme Court frequently proclaims that guilt by association has no place in our constitutional system (for example, Schneiderman v. United States, 1943; wieman v. updegraff, 1952). Sanctions imposed for membership in a group are said to be characteristic of primitive cultures, or elements of the early common law long since eliminated with prohibitions against such punishments as attaint and forfeiture.

In 1920, charles evans hughes made what is probably still the most famous statement attacking guilt by association as inconsistent with our individualistic legal norms. In protesting the action of the New York Assembly, which had suspended five elected members because they were members of the Socialist Party, Hughes argued: "It is the essence of the institutions of liberty that it be recognized that guilt is personal and cannot be attributed to the holding of opinion or of mere intent in the absence of overt acts."

Other Justices frequently quoted or paraphrased this argument by Hughes, made between the two periods Hughes served on the Court, in decisions invalidating deportations, employment dismissals, and denials of licenses, as well as in criminal prosecutions. It is obvious, however, that frequently ascription of guilt by association is permitted. For example, members of a criminal conspiracy may be found guilty for actions by their co-conspirators based entirely on their association in the conspiracy. The Supreme Court recognized the potential for abuse in criminal conspiracy in Krulewitch v. United States (1949), but convictions of coconspirators still may be upheld without proof of their direct knowledge or participation in the range of crimes committed by other members of the conspiracy.

There are also striking examples of the Court's condoning of government action based on the presumption of guilt by association in constitutional law. These include the japanese american cases (1943–1944), which upheld the internment of West Coast residents of Japanese ancestry during world war ii, and numerous decisions during the 1950s, such as american communications association v. douds (1950) and barenblatt v. united states (1959), which allowed sanctions for membership in communist organizations.

Despite reiteration of the unacceptability of punishment premised upon guilt by association, judgments about individuals based upon their membership in groups frequently—perhaps even necessarily—are made in a bureaucratized world in which personal knowledge of others seems increasingly elusive. Nevertheless, the assignment of individual guilt premised on one's associations remains anathema. It is still thought to be an important premise of constitutional law that the government may not use a gross shorthand such as guilt by association to stigmatize or to punish citizens.

Constitutional safeguards derived primarily from the first amendment and the due process clauses are said to surround freedom of association. When the government employs the technique of guilt by association, it endangers this freedom, which the Court proclaimed in dejonge v. oregon (1937) to be among the most fundamental of constitutional protections. Guilt by association also is inconsistent with basic premises of individual responsibility, which lie close to the core of much of America's legal culture.

Aviam Soifer


Emerson, Thomas I. 1970 The System of Freedom of Expression. Pages 105–110, 126–129, 161–204, 235–241. New York: Random House.

O'B rian, John L. 1948 Loyalty Tests and Guilt by Association. Harvard Law Review 61:592–611.

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Guilt By Association

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