Constitution of the United States/First Amend./Freedom of Association
First Amendment: Freedom of Association
Overview of Freedom of Association[edit | edit source]
The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment's text does not expressly identify a "freedom of association," the Supreme Court has recognized this right as "an indispensable means of preserving" other First Amendment freedoms. Specifically, the Court "has recognized a right to associate for the purpose of engaging" in "speech, assembly, petition for the redress of grievances, and the exercise of religion."
This right of "expressive association" is the focus of this set of essays. The Court has also recognized a "personal liberty" interest in "certain intimate human relationships," protected not only by the First Amendment, but also by the Due Process Clause of the Fourteenth Amendment. This concept of "intimate association" is discussed at the end of this section and in the essays on substantive due process.
The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments "have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies" formed to petition the government. It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association. In 1937, the Court held that the "right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental." The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union "is protected not only as part of free speech, but as part of free assembly."
Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment. By 1958, the Court considered it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties such as the freedom of speech. Although political association is a classic example of expressive association, the First Amendment also protects "forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members."
Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati, the Court held that a local ordinance violated the freedoms of association and assembly on its face. The challenged ordinance made it a crime for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by." According to the Court, this ordinance was "aimed directly at activity protected by the Constitution"--the freedoms of association and assembly.
More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one's associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals. Accordingly, First Amendment protections "are triggered not only by actual restrictions on an individual's ability to join with others to further shared goals," but also by laws or regulations that may have a "chilling effect on association."
The Court's decisions in this area, though not always reconcilable, reflect a balancing of First Amendment rights and governmental interests as well as the major political and social events of the era. For example, in the 1950s and 1960s, the Court adjudicated many cases in which the government asked U.S. citizens to reveal or disavow their actual or perceived affiliations with the Communist Party. The Court largely credited concerns that states and the federal government expressed at that time about the security threat that Communism posed to the United States, even while applying increasing First Amendment scrutiny to laws that burdened the association of other groups. Describing its own decisions in 1963, the Court explained, "the Communist Party is not an ordinary or legitimate political party[,]" and thus, Party membership "is a permissible subject of regulation and legislative scrutiny." While the Court later abandoned some of its presumptions about the dangers of bare association, the Court's care with respect to issues of national security remained evident in later cases, such as a 2010 decision upholding a ban on domestic support of designated foreign terrorist organizations.
Although many of the leading Supreme Court decisions on the freedom of association concerned burdens on association, the Court has also held that "compelled association" can violate the First Amendment. For example, in some circumstances, laws requiring organizations to include persons with whom they disagree on political, religious, or ideological matters can violate members' freedom of association, particularly if those laws interfere with an organization's message.
As with other individual rights protected by the Constitution, the freedom of association is not absolute. First, the government may prohibit "agreements to engage in illegal conduct," even though such agreements "undoubtedly possess some element of association." Second, forms of association that are neither "intimate" nor "expressive" within the meaning of First Amendment case law may not receive constitutional protection. Third, as noted above, even when a law implicates protected association, the government's interests may outweigh the burdens on association in some circumstances. Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group's concerns.
Restrictions on Expressive Association[edit | edit source]
Barriers to Group Advocacy and Legal Action[edit | edit source]
The Supreme Court has recognized that joining together to advance political and civil rights is "expressive and associational conduct at the core of the First Amendment's protective ambit."ALDF_00019535 Accordingly, when the government regulates in ways that restrict or burden such association, it typically must show that its law or action is narrowly drawn to achieve a compelling governmental interest.ALDF_00019536 In the Supreme Court's words, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity."ALDF_00019537
A state generally has the authority to regulate professions that it licenses, including attorneys.ALDF_00019538 That authority may apply even to professionals' speech, especially in a commercial context. For example, a state may restrict "in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons" in certain places, such as an accident scene, where consumers are particularly vulnerable to undue influence.ALDF_00019539
When professionals are engaged in "political expression and association," however, a state "must regulate with significantly greater precision."ALDF_00019540 In particular, the freedom of association includes a "basic right to group legal action" and protects "collective activity undertaken to obtain meaningful access to the courts."ALDF_00019541 This protection extends to the activities of lawyers and legal organizations themselves in some circumstances.ALDF_00019542 Thus, a state may not bar organizations that use "litigation as a vehicle for effective political expression and association" from offering legal services to prospective clients based on "some potential" for violation of ethical standards.ALDF_00019543
The 1963 case NAACP v. Button established that the First Amendment protects "cooperative, organizational activity" to pursue "legitimate political ends" through litigation.ALDF_00019544 The case involved a Virginia law banning "the improper solicitation of any legal or professional business," which the Virginia courts had construed to ban certain outreach activities of the National Association for the Advancement of Colored People, Inc. (NAACP) related to the provision of legal assistance.ALDF_00019545 The Supreme Court began its analysis by clarifying that "abstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion."ALDF_00019546 Although the NAACP "is not a conventional political party," the Court explained, its litigation activity enables "the distinctive contribution of a minority group to the ideas and beliefs of our society."ALDF_00019547 "For such a group," the Court continued, "association for litigation may be the most effective form of political association."ALDF_00019548 The Court therefore held that Virginia's broadly construed law violated the First Amendment "by unduly inhibiting protected freedoms of expression and association."ALDF_00019549
Following the Button decision, the Court held in three cases that labor unions enjoyed First Amendment protection in assisting their members to pursue legal remedies. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;ALDF_00019550 in the second, the union retained attorneys on a salaried basis to represent members;ALDF_00019551 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.ALDF_00019552 In each case, the Court concluded that the government had an insufficient regulatory interest to prohibit the legal services at issue because the government relied on a remote possibility of harm to prospective clients resulting from unethical practices.ALDF_00019553
Because not all forms of advocacy are protected under the First Amendment, not all associations for the purpose of advocacy are protected to the same degree. In Scales v. United States, the Court upheld the "membership clause" of the Smith Act, which, under the Court's interpretation, made it a felony for an individual to be an active member of an organization that advocates the overthrow of the U.S. government by force or violence if the individual shares that specific intent.ALDF_00019554 The defendant in Scales was convicted based on his membership in the Communist Party of the United States.ALDF_00019555 That group's advocacy, the Court explained, "is not constitutionally protected speech."ALDF_00019556 The Court reasoned that membership in a group engaged in "forbidden advocacy" should receive no greater First Amendment protection than the proscribable speech itself.ALDF_00019557
Additionally, although access to the courts was a key consideration in Button, not all laws limiting such access burden the freedom of association. For example, the Court upheld a statutory limit on attorney's fees for certain veterans' benefits claims, reasoning that the limitation did not infringe the freedom of association because it applied "across-the-board to individuals and organizations alike."ALDF_00019558 In another case, the Court concluded that waiving the court fees of indigent individuals, but not organizations, did not violate the First Amendment.ALDF_00019559 Because an organization could qualify for the fee waiver only if its members were individually indigent anyway, the Court reasoned, litigating as an organization would not materially assist their expressive capacity.ALDF_00019560 Thus, it appears that barriers to litigation are unlikely to impede the freedom of association if they have similar effects on individuals and organizations.
Election Laws[edit | edit source]
Even though states have broad authority to administer their elections, the Court has recognized the potential for state election laws to burden the associational rights of voters, candidates, and political parties. Whether an election law "governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself," it "inevitably affects" an "individual's right to vote and his right to associate with others for political ends." In evaluating whether such a law comports with the First Amendment, the Supreme Court has balanced the interests of the state in administering its elections with the burdens of the challenged requirement on individual rights.
States may impose some restrictions on a candidate's or party's access to the ballot. For example, the Court held that a state may require political parties to "demonstrate a significant, measurable quantum of community support" in order to appear on a general election ballot. Such a requirement serves the state's "vital interests" in preserving "the integrity of the electoral process" and "regulating the number of candidates on the ballot to avoid undue voter confusion." The Court also upheld, on similar grounds, a California election law prohibiting an individual from running as an independent candidate if that individual was defeated in another party's primary during the same election cycle or had a registered affiliation with another political party within the preceding year.
The Court has found other ballot-access requirements to unduly infringe the associational rights of candidates and voters. In 1974, the Court struck down an Indiana law forbidding a political party from appearing on an election ballot unless it filed an affidavit stating under oath that it did not advocate the overthrow of the government by force or violence. The Court held that the state could not condition access to the ballot on such a "loyalty oath," because the First Amendment protects advocacy of violent overthrow as an "abstract doctrine." In another case, the Court held that an Ohio law requiring individuals to file a statement of candidacy for the presidency in March--well before the major parties' primaries and the November general election--unconstitutionally burdened the associational rights of independent voters. In 1992, the Court reversed a state supreme court decision barring a new political party from appearing on the ballot under a particular name.
The right of association generally protects a political party's decisions about its internal structure and processes for choosing candidates for national office. According to the Court, "a State cannot justify regulating a party's internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair." Several cases illustrate these principles. In Democratic Party of the United States v. Wisconsin, the Court held that while a state was free to allow non-Democrats to vote in its Democratic primary, it could not constitutionally compel the Democratic Party to seat the state's delegates (who were bound by the primary results) at the party's national convention. In Tashjian v. Republican Party, the Court held that a state could not prohibit the Republican Party from opening up its primary to independents. In California Democratic Party v. Jones, the Court held that California's "blanket primary" violated political parties' freedom of association because it "force[d] political parties to associate with--to have their nominees, and hence their positions, determined by--those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival." Similarly, in upholding a Puerto Rico law authorizing an incumbent political party to fill an interim vacancy in a legislative seat held by that party, the Court ruled that the party did not need to open its election to nonmembers, analogizing the process to a party's primary election.
The Court is willing to let states restrict some individual political activity in order to protect the integrity and effectiveness of political associations. For example, the Court upheld a New York law requiring a voter to enroll as a party member at least thirty days before the general election each year in order to vote in the next primary for that party. The Court reasoned that the law was intended to prevent "party 'raiding,' whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary," and that this was a "particularized legitimate purpose." In contrast, the Court found the anti-raiding rationale insufficient to sustain an Illinois law that prohibited an individual from voting in a primary election because she had voted in another party's primary within the preceding twenty-three months. Unlike New York's law, the Illinois law effectively "'lock[ed]' voters into a pre-existing party affiliation from one primary to the next," requiring them to "forgo voting in any primary for a period of almost two years" in order to "break the 'lock.'"
Like election laws, government-imposed limits on contributions to political candidates or political organizations also can burden associational rights of candidates or organizations and their supporters. For example, the Court held that a local ordinance that imposed a $250 limit on "contributions to committees formed to support or oppose ballot measures" violated the freedom of association of the committees and their contributors. A key factor for the Court was that "an affluent person" could "spend without limit to advocate individual views on a ballot measure," but the ordinance restricted only contributions "made in concert with one or more others in the exercise of the right of association."
The Supreme Court commonly analyzes First Amendment challenges to contribution limits and related campaign finance laws in terms of the burdens they might place on both the freedoms of speech and association. These cases are discussed in the Freedom of Speech section of the First Amendment essay.
Denial of Employment or Public Benefits[edit | edit source]
Generally speaking, the First Amendment prohibits the government from denying an individual access to a job or profession because of the individual's current or past associations alone. There are, however, some instances in which the Court has upheld employment-related restrictions on association, as discussed below.
During the 1950s and 1960s, the Supreme Court considered actions taken by the federal and state governments to address Communism in the workplace. In 1950, the Court considered the "grave and difficult problem" presented by a federal law that effectively "discouraged" unions from electing members of the Communist Party to leadership positions in the union. While recognizing that the law affected protected association, the Court reasoned that the statute mainly regulated "harmful conduct" in the form of political strikes designed to obstruct labor relations and interstate commerce. The Court upheld the law, concluding that it was directed not at what Communists "advocate or believe," but what "they have done and are likely to do again."
Two years later, in Adler v. Board of Education, the Court upheld a New York law that disqualified members of the Communist Party and other state-designated organizations from holding offices or teaching positions in the public school system. The Court concluded that the state may deny these individuals "the privilege of working for the [public] school system" because of their "unexplained membership in an organization found by the school authorities, after notice and a hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose."
By the mid-1960s, however, the Court largely had abandoned Adler's reasoning. For example, in 1966, the Court considered an Arizona law that subjected a state employee to "immediate discharge and criminal penalties" if, at the time of taking the oath of office or thereafter, the employee knowingly was a member of the Communist Party or any other organization whose purposes included the overthrow of the state government. The Court held that this "guilt by association" approach violated the First Amendment. That the statute applied only to individuals who knew of the organization's unlawful purpose did not save it. The Court held that a "law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms."
In 1967, the Court likewise held unconstitutional a provision of the federal Subversive Activities Control Act of 1950 that prohibited a member of a "Communist-action organization" from gaining employment "in any defense facility." The Court concluded that the statute violated the First Amendment right of association because it swept "indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership." More precise regulation was needed, the Court explained, to address "the congressional concern over the danger of sabotage and espionage in national defense industries" and comply with the First Amendment. "It would indeed be ironic," the Court observed, "if, in the name of national defense, we would sanction the subversion of one of those liberties--the freedom of association--which makes the defense of the Nation worthwhile."
In a series of cases involving political patronage requirements that began in the 1970s, the Supreme Court held that the government cannot fire or demote a public employee because of the employee's political affiliation except in narrow circumstances involving high-ranking employees with policy-making functions.
Related to association-based employment restrictions are cases involving "loyalty oaths" that required government employees to disclaim membership in certain organizations. These cases are discussed in the Freedom of Speech essay because they involved compelled speech. The extent to which the government can require a prospective employee or applicant for a professional license to disclose prior associations is discussed in more detail in another essay.
While the foregoing cases dealt with employment, the Court has also signaled that group association cannot be the sole basis for denying public benefits. For example, the Court held that a public university's refusal to register a student group because of its affiliation with a national organization violated the students' freedom of association. Similarly, a state may not require an individual to "forfeit" the right of association "as the price for exercising another" protected right.
Conditions of Incarceration[edit | edit source]
Incarceration is a special context in which the government has more authority to restrict the freedom of association. The Supreme Court has explained that the "fact of confinement and the needs of the penal institution impose limitations on constitutional rights," most notably, the freedom of association. Accordingly, the standard of review for freedom-of-association claims is deferential to the government and prison administrators. The Court has held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." In evaluating reasonableness, the Court has considered: (1) whether there is a "valid, rational connection between the prison regulation" and a "legitimate and neutral" governmental interest; (2) whether prison inmates have "alternative means of exercising the right" available to them; (3) the "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives" to the regulation.
Applying the "reasonable relationship" test, the Court upheld a ban on inmate solicitation and group meetings for a prisoners' union; restrictions on visitation by children; and restrictions on certain types of correspondence between inmates. In contrast, the Court struck down a regulation prohibiting prisoners to marry only with the permission of the prison's superintendent and only for "compelling reasons." The Court held that the fundamental constitutional right to marry--a right of intimate association--applies in the prison context and that the regulation at issue was "not reasonably related" to the prison's "security and rehabilitation concerns."
Material Support Bar[edit | edit source]
Although foreign organizations operating abroad generally do not have First Amendment rights, the First Amendment does protect the associations of U.S. persons and residents, even if those associations are with foreign persons. Still, the government may proscribe some types of interactions with foreign groups or individuals in the interest of national security.
In Holder v. Humanitarian Law Project, two U.S. citizens and six domestic organizations challenged the constitutionality of a federal ban on providing material support or resources to designated foreign terrorist organizations. They argued that the law criminalized protected speech and association with two foreign groups that the United States had designated as foreign terrorist organizations. The Supreme Court agreed that the law restricted the freedom of speech, but it held that the United States's interests in national security and combating international terrorism justified the prohibition.
With regard to the plaintiffs' freedom-of-association claim, the Court concluded that the statute did "not penalize mere association with a foreign terrorist organization," suggesting that the First Amendment would protect membership in a foreign terrorist organization or independent advocacy of the group's political goals. Instead, the Court reasoned, the statute prohibited only providing specified forms of material support to such organizations. In the plaintiffs' case, that support took the form of providing training or legal expertise on issues of peaceful dispute resolution and humanitarian aid. To the extent the prohibition burdened association, the Court held, it was justified on the same national security grounds as the statute's restrictions on speech.
Disclosure of Association[edit | edit source]
Associational Privacy[edit | edit source]
The Supreme Court has recognized "the vital relationship between freedom to associate and privacy in one's associations."ALDF_00019624 In some circumstances, government-compelled disclosure of an individual's affiliations can expose that individual to harm in the form of threats, harassment, or economic reprisals.ALDF_00019625 This potential exposure may dissuade individuals from joining together for the purpose of collective advocacy, thus chilling protected speech and association.ALDF_00019626 Accordingly, the Supreme Court has barred the government from compelling organizations to reveal their members, or individuals to reveal their memberships, in some circumstances.ALDF_00019627
At the same time, the Court has not recognized an absolute right to privacy of one's associations, often weighing the government's interests in disclosure against the likelihood of harm resulting from the exposure.ALDF_00019628 In some cases, this analysis took the form of a balancing test, with the government's interests presumptively tipping the scales.ALDF_00019629 In other cases, the Court applied a form of heightened scrutiny under which the government bore the burden of demonstrating that its interests in disclosure were sufficiently important to justify the intrusion into associational rights.ALDF_00019630
Whether disclosure will be public also appears to be a factor in the Court's analysis. For example, in Nixon v. Administrator of General Services, former President Richard M. Nixon challenged a federal law directing the Administrator of General Services to take custody of President Nixon's papers and tape recordings and issue regulations governing the archival screening of the materials and public access to archived materials.ALDF_00019631 The case involved several constitutional claims,ALDF_00019632 one of which was that the screening process violated the President's "rights of associational privacy and political speech."ALDF_00019633 The Supreme Court acknowledged that "involvement in partisan politics is closely protected by the First Amendment" and that compelled disclosure "can seriously infringe on privacy of association and belief," but it ultimately concluded that the President's First Amendment claim was "clearly outweighed by the important governmental interests promoted by" the federal law.ALDF_00019634
Disclosure of Membership Lists[edit | edit source]
The Supreme Court began to apply heightened scrutiny in cases involving compelled disclosure of association in a series of cases in the 1950s and 1960s in which certain states were attempting to thwart the activities of the National Association for the Advancement of Colored People, Inc. (NAACP). In NAACP v. Alabama ex rel. Patterson, the Court unanimously set aside a state court's contempt order against the NAACP for refusing to produce a list of its members within the state. The state ostensibly requested the information to verify compliance with business registration requirements. The Court, however, held that the state had failed to demonstrate a need for the identities of the organization's "rank-and-file members" that would outweigh the harm to publicly exposed members in the form of "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility."
The Court in Bates v. City of Little Rock also held that a city government could not constitutionally compel the NAACP to disclose its local members. In that case, there was "substantial uncontroverted evidence" that publicly identified members had experienced "harassment and threats of bodily harm." The asserted governmental interest in that case was the assessment of occupational license taxes. Although the Court found this interest to be sufficiently compelling, it concluded that the city failed to demonstrate that obtaining and publishing local membership lists was "reasonably related" to this interest, given that the city could obtain information about businesses and occupations without collecting information about individual members. The Court reaffirmed in Louisiana ex rel. Gremillion v. NAACP, another case involving compelled disclosure of membership lists, that "regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights."
By contrast, the Court rejected a First Amendment challenge by the Communist Party of the United States to the federal Subversive Activities Control Act of 1950. Pursuant to the Act, the U.S. government determined that the Communist Party must register with the U.S. Attorney General as a Communist-action organization and provide the names and addresses of its officers and any individuals who were members during the previous twelve months. Registration, in turn, triggered other regulatory requirements.
After the Court upheld the "Communist action organization" designation as merely "regulatory," it turned to the registration requirement itself, considering whether it infringed the right of party members to associate anonymously. The Court acknowledged its holdings in NAACP and Bates, but it held that the federal government had a greater interest in registration than the state parties in those cases because Communist-action organizations are "substantially dominated or controlled" by foreign powers seeking "the overthrow of existing government by any means necessary."
Character and Fitness and Evidentiary Disclosures[edit | edit source]
Under Supreme Court precedent, states can require applicants for professional licenses to meet qualifications that are rationally related to the profession, including demonstrating "good moral character." However, as discussed in a previous section, a state generally cannot deny an individual a professional license solely on the basis of his or her past or present, lawful affiliations. In a similar vein, inquiries into an applicant's associations must be sufficiently tailored in light of their potential chilling effect on association.
Character and fitness cases once produced "[s]harp conflicts and close divisions" in the Court, particularly following the federal and state investigations into Communist activity in the 1950s. In general, the Court's decisions show a concern for character inquiries based on membership in Communist organizations, but more suspicion about inquiries based on other kinds of association. Thus, in Konigsberg v. State Bar of California, the Court allowed a state bar association to question an applicant, in private, about his prior membership in the Communist Party, citing California's "interest in having lawyers who are devoted to the law in its broadest sense," including "its procedures for orderly change." And a decade later, the Court reaffirmed that "Bar examiners may ask about Communist affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusal to answer." On the same day, however, a plurality of the Court concluded that the State Bar of Arizona could not deny admission to a candidate based on her refusal to divulge whether she had ever been a member of the Communist Party or any organization "that advocates overthrow of the United States Government by force or violence." The difference between these two cases, in the plurality's view, appeared to be the Arizona bar's interest in organizations other than the Communist Party, which the plurality characterized as "[b]road and sweeping."
The breadth of the state's inquiry was also at issue in Shelton v. Tucker. There, the Court ruled that, though a state had a broad interest in ensuring the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years. The Court explained that the "unlimited and indiscriminate sweep of the statute" defeated its connection to a "legitimate inquiry into the fitness and competency" of public school teachers.
Disclosure of a person's associations may be permissible during a sentencing hearing following a criminal conviction. The Supreme Court has explained that the "Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." However, those associations must be relevant to proving aggravating or mitigating circumstances, not just the defendant's "abstract beliefs."
Legislative Inquiries[edit | edit source]
The First Amendment constrains government action, not just in the administration and enforcement of public laws, but also in conducting legislative investigations. A legislature's power of inquiry is "broad," encompassing "inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes." Legislative investigations "may properly probe historic events for any light that may be thrown on present conditions and problems." The Court has warned, however, that even if "the general scope of the inquiry is authorized and permissible," a legislature is not necessarily "free to inquire into or demand all forms of information." Because of First Amendment constraints, a legislature may not "probe" an individual's associations "at will and without relation to existing need."
The test to be applied in balancing legislative interests against individual rights of association is not entirely settled. In a case concerning a state legislature's investigation of the National Association for the Advancement of Colored People, Inc. (NAACP), the Court stated that to "intrude[ ] into the area of constitutionally protected rights of speech, press, association and petition," the state must show "a substantial relation between the information sought and a subject of overriding and compelling state interest." This test mirrors the exacting scrutiny standard the Court has applied in other contexts involving government-compelled disclosure of private associations.
The Supreme Court appears to have applied a more relaxed standard of review in other cases involving legislative inquiries decided during the same time period, particularly those involving investigations into the associations and activities of members or suspected members of the Communist Party. For example, in Barenblatt v. United States, the Court held that a Subcommittee of the House Committee on Un-American Activities could question a witness about his membership in the Communist Party without violating the First Amendment. The Court reasoned that the hearing, which concerned "alleged Communist infiltration into the field of education," involved a "valid legislative purpose," because Congress had "wide power to legislate in the field of Communist activity in this Country" as a means of "self-preservation." If the Court applied a balancing test in this decision, it did not discuss the witness's countervailing First Amendment interests.
Although both state and federal legislatures may conduct investigations, congressional inquiries have the added protection of the Speech or Debate Clause, which generally protects the legislative actions of Members of Congress from judicial interference. In the 1975 Eastland decision, the Supreme Court cited the Speech or Debate Clause in declining to adjudicate a freedom-of-association-based challenge to a subpoena from a congressional subcommittee. Eastland involved a pre-enforcement challenge to a congressional subpoena, but the other cases discussed above suggest that a First Amendment defense may yet be available in a contempt proceeding for refusal to comply with a congressional subpoena.
Donor Disclosure Requirements[edit | edit source]
As previously discussed, the Supreme Court has recognized a First Amendment interest in the privacy of one's associations and held that compelled disclosure of an organization's members can chill that protected association. In 1976, in Buckley v. Valeo, the Court extended this reasoning to disclosure of a political candidate's financial contributors required by federal campaign finance laws. The Court observed that the "invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for '[f]inancial transactions can reveal much about a person's activities, associations, and beliefs.'"
In view of these considerations, the Court applied a heightened standard of review called "exacting scrutiny," which the Court derived from its analysis in NAACP v. Alabama ex rel. Patterson. Under Buckley's formulation of exacting scrutiny, the government must show a "substantial relation" between a "subordinating" state interest and the information required to be disclosed. Ultimately, the Court in Buckley concluded that the federal government's interests in an informed electorate, deterring corruption, and detecting violations of certain contribution limits outweighed the right to contribute anonymously in that case.
The Court reached a different conclusion with respect to state campaign finance disclosures as applied to "the Socialist Workers Party, a minor political party which historically has been the object of harassment by government officials and private parties." In reasoning analogous to NAACP, the Court found that disclosure of either the parties' contributors or the recipients of their campaign disbursements would "subject those persons identified to the reasonable probability of threats, harassment, or reprisal."
The Court also applied exacting scrutiny in a 2010 case involving the disclosure of petition sponsors rather than donors. In Doe v. Reed, voters seeking to challenge a state law through the referendum process had to submit a petition with the requisite number of signatures to the secretary of state. Such petitions were subject to public disclosure and included the names and addresses of signatories. The Court held that petition activity is protected by the First Amendment and that disclosure requirements in the electoral context are subject to exacting scrutiny. Balancing the relevant interests, the Court held that "preserving the integrity of the electoral process" by combating "petition-related fraud" was a sufficiently important purpose to justify the "modest burdens" that disclosure might cause.
The balance of interests tilted in favor of the organizations and their donors in the Court's 2021 decision in Americans for Prosperity Foundation v. Bonta. That case involved a California regulation requiring charities soliciting funds in the state to disclose to the State Attorney General the names, addresses, and total contributions of an organization's significant donors. Although the Justices in the majority divided over the applicable level of First Amendment scrutiny, they agreed that under exacting scrutiny, the government must "narrowly tailor" a disclosure requirement to the asserted governmental interest. The majority concluded that California's disclosure rule failed this requirement because of the "dramatic mismatch" between the state's interest in preventing charitable fraud and its "up-front," "blanket demand" for the disclosure.
Compelled Association[edit | edit source]
Union Membership and Fees[edit | edit source]
The First Amendment comes into play when the government or a public employer requires employees to join or financially support a union as a condition of employment. Requiring employees to subsidize a union--even when membership is not required--compels employees to fund the union's speech, implicating both speech and expressive association.
For over forty years, the Court's decisions allowed such government-compelled union fees to some extent. In 1977, in Abood v. Detroit Board of Education, the Court ruled that public-sector employers could require their employees to pay agency fees to their union representatives for the purposes of collective bargaining, contract administration, and grievance procedures. Compulsory union fees--also called "agency fees"--could not, however, be used for political purposes. The Court reasoned that the First Amendment bars a state from compelling an individual "to contribute to the support of an ideological cause he may oppose as a condition" of public employment.
Abood's allowance of fees for activities germane to collective bargaining, though criticized at times by Members of the Court, held sway until 2018, when the Supreme Court overruled this aspect of the decision in Janus v. AFSCME, Council 31. The Janus Court held that compulsory agency fees unduly burdened the speech and association of public-sector employees who did not want to join or financially support their workplace union.
Nondiscrimination and Equal-Access Requirements[edit | edit source]
Nondiscrimination laws implicate the freedom of association to the extent that they require organizations to admit or otherwise associate with individuals that they would otherwise exclude. While the Supreme Court has recognized a right not to associate, it has also held that the Constitution "places no value on discrimination." Many of the cases involving freedom of association thus concern the interplay between government-imposed nondiscrimination or equal-access requirements and a group's freedom to associate with individuals of its choosing. The Supreme Court decisions in this area also are informed, in part, by the Court's solicitude for an organization's own freedom of speech.
In general, the government may impose nondiscrimination requirements on private, social organizations through public accommodations laws and other statutory requirements if those laws "serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." In Roberts v. United States Jaycees, the Court held that Minnesota, through its public accommodations law, could require the United States Jaycees to include women in its membership. The Court reasoned that the government had a compelling interest in ensuring that women had equal access to publicly available goods and services, including the programs offered by the Jaycees. Additionally, applying the law to the Jaycees advanced that interest through "the least restrictive means." The exclusion of women, the Court ruled, was not necessary to preserve the integrity of the organization's own expressive activities, which included civic, charitable, lobbying, fundraising, and other activities that did not depend on an all-male membership. The Court reached a similar decision, based on similar reasoning, three years later in Board of Directors of Rotary International v. Rotary Club of Duarte.
Consistent with Roberts and Duarte, in New York State Club Association v. City of New York, the Court upheld New York City's Human Rights Law, which prohibited race, creed, sex, and other discrimination in places "of public accommodation, resort, or amusement," and extended to certain private clubs. The Court reasoned that the City's antidiscrimination law was neither invalid in all its applications nor "substantially overbroad" because the city could constitutionally apply the law to large clubs with commercial operations.
Essential to the holding of Roberts and Rotary International was the Court's conclusion that including women in those organizations would not impinge on the organization's ability to present its message. In contrast, where nondiscrimination requirements would affect an organization's messaging, the Court has been more protective of the right of association under the First Amendment. In Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, the private organizers of Boston's St. Patrick's Day parade denied a group's request to march in the parade. The group claimed that its exclusion was based on its members' sexual orientation and thus violated the state's public accommodations law. The parade organizers responded that application of that statute would violate their freedom of expressive association. The Supreme Court agreed with the parade organizers. It first held that parades are a form of expression even if they lack a "particularized message" because marchers in a parade are usually "making some sort of collective point." The Court next reasoned that the group sought to engage in expressive speech by marching as a unit celebrating its members' gay, lesbian, and bisexual identities and Irish heritage. Because "every participating unit affects the message conveyed by the private organizers," the Court reasoned, application of the statute would effectively conflict with the First Amendment by requiring the private organizers to "alter the expressive content of their parade." The Court distinguished Roberts and New York State Club Association as not involving "a trespass on the organization's message itself." Even if the parade could be analogized to a large, private club, such that Massachusetts could "generally justify a mandated access provision," the Court reasoned, the First Amendment would still allow such a group to "exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."
In Boy Scouts of America v. Dale, the Court similarly held that the First Amendment allowed the Boy Scouts of America to refuse a leadership role to an "avowed homosexual," despite New Jersey's public accommodations law. Citing Hurley, the Court held that "[t]he forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." The Boy Scouts, the Court found, engaged in expressive activity in seeking to transmit a system of values, which, for that organization, included opposing homosexual conduct. The Court also gave "deference to [the] association's view of what would impair its expression." Allowing a gay rights activist to serve in the Scouts would "force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."
The Court distinguished Dale in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. In holding that a law requiring colleges to allow military recruiters on campus did not violate the schools' freedom of expressive association, the Court observed that "[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association."
The "close scrutiny" given to public accommodations laws that limit associational freedom in cases ranging from Roberts to Dale may not apply in all contexts. Christian Legal Society Chapter of the University of California v. Martinez concerned a public law school's "accept-all-comers policy" that required student organizations to "open eligibility for membership and leadership to all students" as a condition of registration. A student organization argued that this policy violated their associational rights because the organization wanted to accept or exclude students based on their religion or sexual orientation. The Court did not ask whether the policy was the least restrictive means of advancing the school's interests in nondiscrimination. Instead, it analogized the school's program for registered student organizations to a "limited public forum" where a regulation of First Amendment activity need only be reasonable and viewpoint-neutral. The Court held that the policy met both of those requirements.
Intimate Association[edit | edit source]
While the previous sections have focused on expressive association, the Constitution also protects certain forms of "intimate association." These protections primarily extend from the personal liberty interests protected by the Due Process Clause of the Fourteenth Amendment, which the Court has construed to include an implied "right of personal privacy." The relationships "entitled to this sort of constitutional protection" are "those that attend the creation and sustenance of a family," including those formed through marriage, childbirth, child-rearing, and "cohabitation with one's relatives." Those constitutional liberties are discussed more fully elsewhere in the Constitution Annotated.
Infrequently, the Supreme Court has considered the degree to which the First Amendment may also protect association in family and intimate relationships. In Lyng v. International Union, the Court rejected a First Amendment challenge to a federal law that denied eligibility for food stamps while any member of a household was on strike. The Court reasoned that the law did not violate the freedom of association of close relatives because it did not "directly and substantially interfere with family living arrangements."
- Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
- Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).
- Id. at 617-18. See, e.g., Griswold, 381 U.S. at 486 (recognizing marriage as a protected relationship); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that "same-sex couples may exercise the fundamental right to marry," that is "inherent in the liberty of the person" and protected under the Fourteenth Amendment). Although these two conceptions of associational freedom differ, the Court has explained that "[i]n many cases, government interference with one form of protected association will also burden the other form of association." Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544 (1987).
- Roberts, 468 U.S. at 618. See Fourteenth Amend., Sec. 1: Family Autonomy and Substantive Due Process and Fourteenth Amend., Sec. 1: Marriage and Substantive Due Process.
- Presser v. Illinois, 116 U.S. 252, 267 (1886). See First Amend.: Historical Background on Freedoms of Assembly and Petition.
- See Thomas v. Collins, 323 U.S. 516, 530 (1945) ("It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.").
- De Jonge v. Oregon, 299 U.S. 353, 364 (1937).
- Thomas, 323 U.S. at 532, 539-40.
- First Amendment Fundamental Freedoms; e.g., Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 409 (1950).
- NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Legal scholars have debated whether the Court initially grounded this right of association in the First Amendment (applicable to the states through the Fourteenth Amendment) or in the Fourteenth Amendment's Due Process Clause. See John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 Tenn. L. Rev. 485, 501-17, 530-33 (2010) (discussing these two constitutional arguments and the early legal commentary after NAACP v. Alabama ex rel. Patterson); Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 624 (1980) (writing that before the Court's 1965 decision in Griswold v. Connecticut, "the notion of constitutional protection of the freedom of association was a First Amendment doctrine and little more"). Ultimately, the Court recognized two different strands of freedom of association, tying the freedom of expressive association to the First Amendment and the freedom of intimate association primarily to the Fourteenth Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
- See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) (plurality opinion) (calling the "freedom of political association" a "highly sensitive area[ ]" of First Amendment activity requiring investigations to be "carefully circumscribed"); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (observing the "special place the First Amendment reserves" for a political party's selection of its own candidate).
- Griswold v. Connecticut, 381 U.S. 479, 483 (1965); see also Alabama ex rel. Patterson, 357 U.S. at 460-61 (stating that "it is immaterial," for First Amendment purposes, "whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters").
- 402 U.S. 611, 615 (1971). The Court also held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment's Due Process Clause. Id. at 614-15.
- Id. at 611 (internal quotation marks omitted).
- Id. at 616. By comparison, in City of Chicago v. Morales, a plurality of the Court concluded that a Chicago loitering ordinance did not substantially affect protected association because the ordinance defined loiter as "remaining in one place 'with no apparent purpose.'" 527 U.S. 41, 53 (1999). The Court nevertheless held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment's Due Process Clause. Id. at 51.
- Alabama ex rel. Patterson, 357 U.S. at 462-63. See First Amend.: Disclosure of Membership Lists.
- Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 19 (U.S. July 1, 2021). Government actions other than compelled disclosure can also burden the freedom of association. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982) (reasoning that holding an organization liable for unlawful conduct that it neither authorized nor ratified "would impermissibly burden the rights of political association").
- See First Amend.: Associational Privacy to First Amend.: Donor Disclosure Requirements.
- See, e.g., Uphaus v. Wyman, 360 U.S. 72, 80 (1959) (holding that New Hampshire's interest in ferreting out "subversive activities" outweighed the associational-privacy interests of attendees at a summer camp run by suspected Communists).
- See, e.g., Alabama ex rel. Patterson, 357 U.S. at 463 (holding that Alabama did not have a "subordinating" interest in obtaining the NAACP's membership lists "sufficient to justify the deterrent effect" that disclosure could have on NAACP members' right of association).
- Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 547 (1963).
- See First Amend.: Material Support Bar.
- Special rules apply in the context of certain religious organizations. For example, the First Amendment protects a religious organization's freedom to select its own ministers to a greater degree than a secular organization's selection of its employees. See First Amend.: Church Leadership and the Ministerial Exception. The Supreme Court has explained that, although the "right to freedom of association is a right enjoyed by religious and secular groups alike," the First Amendment itself "gives special solicitude to the rights of religious organizations" through its Religion Clauses. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012).
- Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000). See First Amend.: Nondiscrimination and Equal-Access Requirements.
- U.S. Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 567 (1973).
- Brown v. Hartlage, 456 U.S. 45, 55 (1982); see also Madsen v. Women's Health Ctr., 512 U.S. 753, 776 (1994) (stating that the freedom of association "does not extend to joining with others for the purpose of depriving third parties of their lawful rights").
- For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. Dallas v. Stanglin, 490 U.S. 19, 28 (1989). Excluding adults did not infringe the teenagers' right to associate with persons outside of their age group, the Court held, declaring that there is no "generalized right of 'social association' that includes chance encounters in dance halls." Id. at 25.
- E.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 40 (2010).
- See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 288 (1984) (recognizing the "government's freedom to choose its advisers" in upholding a state law requiring public universities to "meet and confer" with the faculty union rather than individual faculty members); Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee's right to "associate and speak freely and petition openly," it "does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it"); Babbitt v. UFW Nat'l Union, 442 U.S. 289, 313 (1979) (holding that a state "was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate").
- See Kusper v. Pontikes, 414 U.S. 51, 57 (1973) ("[I]n exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections.").
- Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
- See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
- Am. Party of Tex. v. White, 415 U.S. 767, 782 (1974); see also Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986) (reaffirming that this rule applies to minor-party and independent candidates); Jenness v. Fortson, 403 U.S. 431, 438 (1971) (upholding Georgia's requirement that a prospective candidate who did not receive at least 20% of the votes in a primary election submit a nominating petition with the signatures of 5% of the eligible electorate in order to appear on the general election ballot); N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (holding that a state "may similarly demand a minimum degree of support for candidate access to a primary ballot").
- Am. Party of Tex., 415 U.S. at 782 n.14.
- Storer v. Brown, 415 U.S. 724, 733 (1974).
- See, e.g., Williams v. Rhodes, 393 U.S. 23, 31, 34 (1968) (reasoning that Ohio's ballot access requirements gave "the two old, established parties a decided advantage over any new parties struggling for existence and thus place[d] substantially unequal burdens on both the right to vote and the right to associate" in violation of the Fourteenth Amendment's Equal Protection Clause).
- Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 450 (1974).
- Id. at 442, 450. See First Amend.: Loyalty Oaths to First Amend.: Pickering Balancing Test for Government Employee Speech.
- Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).
- Norman v. Reed, 502 U.S. 279, 290 (1992) (reasoning that the state's interest in "electoral order" did not justify the state supreme court's "inhospitable reading" of the statutory requirements for a new party to access the ballot).
- Tashjian v. Republican Party, 479 U.S. 208, 224 (1986). Cf. Marchioro v. Chaney, 442 U.S. 191, 199 (1979) (stating that "[t]here can be no complaint that the party's right to govern itself has been substantially burdened by statute when the source of the complaint is the party's own decision to confer critical authority" on a state committee).
- Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 233 (1989); see also Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (explaining that a state's "interest in protecting the integrity of its electoral process" is not "compelling in the context of the selection of delegates to" a national party convention, given the national nature of the convention and the need for uniform standards).
- 450 U.S. 107 (1981).
- Tashjian, 479 U.S. at 225. But cf. Clingman v. Beaver, 544 U.S. 581, 587 (2005) (upholding an Oklahoma law barring parties from opening their primaries to voters other than registered party members and registered independents).
- 530 U.S. 567, 577 (2000). Cf. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 458-59 (2008) (upholding a state law allowing voters to vote for any candidate appearing on a primary ballot listing candidates along with their "party preference," because that law did not "on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates").
- Rodriguez v. Popular Democratic Party, 457 U.S. 1, 14 (1982). Despite the Court's solicitude for political parties' rights to control their own procedures and organization, those associational rights may be constrained by other constitutional rights. See Morse v. Republican Party, 517 U.S. 186, 228 (1996) (plurality opinion) (stating that associational rights "could not justify a major political party's decision to exclude eligible voters from the candidate selection process because of their race" because the Fifteenth Amendment "foreclose[s] such a possibility").
- Rosario v. Rockefeller, 410 U.S. 752 (1973).
- Id. at 760, 762.
- Kusper v. Pontikes, 414 U.S. 51, 61 (1973).
- Id. at 60-61.
- See McCutcheon v. FEC, 572 U.S. 185, 204 (2014) (plurality opinion) (explaining how an "aggregate limit on how many candidates and committees an individual may support through contributions" limits an individual's associational rights by potentially forcing him to "choose which of several policy concerns he will advance" (emphasis removed)).
- Citizens Against Rent Control/Coal. for Fair Hous. v. Berkeley, 454 U.S. 290, 291, 300 (1981).
- Id. at 296.
- See id. at 300 (explaining that the "two rights overlap and blend; to limit the right of association places an impermissible restraint on the right of expression").
- See First Amend.: Overview of Campaign Finance to First Amend.: Legislative Investigations.
- Am. Commcn's Ass'n v. Douds, 339 U.S. 382, 393 (1950). Specifically, the law required the officers of each union to file an affidavit stating that they were not members of the Communist Party in order for the National Labor Relations Board to entertain claims filed by that union. Id. at 385.
- Id. at 396.
- 342 U.S. 485, 492 (1952).
- Keyishian v. Bd. of Regents, 385 U.S. 589, 595, 606 (1967).
- Elfbrandt v. Russell, 384 U.S. 11, 13, 16 (1966).
- Id. at 19.
- Id. at 13.
- Id. at 19; see also Keyishian, 385 U.S. at 606 (similarly distinguishing "[m]ere knowing membership" from "a specific intent to further the unlawful aims of an organization").
- United States v. Robel, 389 U.S. 258, 260 (1967) (quoting Section 5(a)(1)(D) of the act).
- Id. at 262.
- Id. at 266-67.
- Id. at 264. For a case in which the Court found national security interests to justify restrictions on protected speech and association with foreign organizations, see First Amend.: Material Support Bar.
- See Elrod v. Burns, 427 U.S. 347, 372 (1976) (plurality opinion) (concluding that political patronage dismissals, in which a public employer fires an employee because of the employee's affiliation or non-affiliation with a particular political party, violate the First Amendment as a general practice, because they "severely restrict political belief and association"); id. at 375 (Stewart, J., concurring in the judgment). See also Branti v. Finkel, 445 U.S. 507, 519 (1980) (holding that "the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government"); Rutan v. Republican Party, 497 U.S. 62, 65 (1990) (holding that "promotion, transfer, recall, and hiring decisions involving low-level public employees" may not be "based on party affiliation and support"); O'Hare Truck Serv. v. City of Northlake, 518 U.S. 712, 726 (1996) (generally extending "the First Amendment safe-guards of political association afforded to employees" to "independent contractors"). See First Amend.: Conditions of Public Employment.
- See First Amend.: Loyalty Oaths to First Amend.: Pickering Balancing Test for Government Employee Speech.
- See First Amend.: Character and Fitness and Evidentiary Disclosures.
- Healy v. James, 408 U.S. 169, 186-87 (1972). However, the Court stated that the university could require applicants to affirm that they will comply with reasonable campus regulations. Id. at 193.
- Lefkowitz v. Cunningham, 431 U.S. 801, 807-08 (1977) (holding that a state may not require a person to waive the person's Fifth Amendment right against self-incrimination as a condition of holding a political party office); Aptheker v. Sec'y of State, 378 U.S. 500, 507 (1964) (holding that a state may not restrict the right to travel based on an individual's membership in a particular association).
- Jones v. N.C. Prisoners' Lab. Union, Inc., 433 U.S. 119, 125 (1977). See First Amend.: Prison Free Speech and Government as Prison Administrator.
- Turner v. Safley, 482 U.S. 78, 89 (1987), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb).
- Id. at 89-90 (internal quotation marks omitted).
- Jones, 433 U.S. at 129-33.
- Overton v. Bazzetta, 539 U.S. 126 (2003).
- Turner, 482 U.S. at 93; see also Shaw v. Murphy, 532 U.S. 223, 231 (2001) (declining "to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech" under Turner).
- Turner, 482 U.S. at 98-99.
- Id. at 95-97.
- See Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., No. 19-177, slip op. at 6 (U.S. June 29, 2020).
- See Kleindienst v. Mandel, 408 U.S. 753, 762-70 (1972) (reasoning that the government's denial of a visa to a foreign scholar implicated the First Amendment rights of American professors who wished to meet and confer with him in person, but holding that the Executive Branch had discretion to deny the visa for a "facially legitimate" reason).
- See Holder v. Humanitarian L. Project, 561 U.S. 1 (2010).
- Id. at 10 (citing 18 U.S.C. § 2339B).
- Id. at 14-15.
- Id. at 28-39 (applying strict scrutiny).
- Id. at 39.
- Id. at 10, 14-15.
- Id. at 40.
- See Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 6 (U.S. July 1, 2021) (discussing Alabama ex rel. Patterson, 357 U.S. 449 (1958)).
- 357 U.S. at 460-61.
- Id. at 462-464.
- Bates v. City of Little Rock, 361 U.S. 516, 527 (1960).
- Id. at 524.
- Id. at 525.
- 366 U.S. 293, 297 (1961). The Court also held unconstitutional, on due process grounds, a statute requiring certain businesses with out-of-state contacts to certify that none of their officers is a member of a Communist or subversive organization, as a condition of doing business in the state. Id. at 294-95.
- Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 4 (1961).
- Id. at 8-9.
- Id. at 9.
- Id. at 81.
- Id. at 88-89.
- Schware v. Bd. of Bar Exam'rs of N.M., 353 U.S. 232, 239 (1957); see also Adler v. Bd. of Educ., 342 U.S. 485, 493 (1952) (reasoning that a public school a prospective teacher's "associates, past and present" in "determining fitness and loyalty").
- See, e.g., Schware, 353 U.S. at 245-46 (holding that a state bar association could not refuse to admit a prospective lawyer on the assumption that "his past membership in the Communist Party" indicated present "bad moral character"). See First Amend.: Denial of Employment or Public Benefits.
- Shelton v. Tucker, 364 U.S. 479, 488 (1960).
- Baird v. State Bar of Ariz., 401 U.S. 1, 2-3 (1971) (plurality opinion).
- 366 U.S. 36, 49-54 (1961).
- L. Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154, 165-66 (1971) (rejecting a facial challenge to the New York Bar Association's screening process).
- Baird, 401 U.S. at 4-5 (plurality opinion) (internal quotation marks and citation omitted); see also In re Stolar, 401 U.S. 23, 30 (1971) (plurality opinion) (reaching the same conclusion with respect to an applicant for admission to the Ohio Bar who refused to answer a similar question).
- Baird, 401 U.S. at 6 (plurality opinion); see also In re Stolar, 401 U.S. at 27-28 (plurality opinion) (holding that Ohio could not require an applicant to the state bar association to "list all the organizations to which he has belonged since registering as a law student and those of which he has ever been a member").
- 364 U.S. 479 (1960).
- Id. Cf. Beilan v. Bd. of Pub. Educ., 357 U.S. 399, 404 (1958) (holding that a public school district could fire a teacher for "statutory 'incompetency' based on his refusal to answer the Superintendent's questions" about his affiliation with a Communist political association).
- Shelton, 364 U.S. at 490; Schneider v. Smith, 390 U.S. 17, 23, 26-27 (1968) (holding that a federal statute authorizing the executive branch to "safeguard" U.S. merchant ships against "sabotage or other subversive acts," 50 U.S.C. § 191(b), did not authorize regulations establishing a screening program for personnel on such vessels that delved into their past associations, ideas, and beliefs).
- Dawson v. Delaware, 503 U.S. 159, 165 (1992).
- Id. at 165-67 (holding that the sentencing court improperly admitted evidence of the defendant's membership in the Aryan Brotherhood that focused only on the organization's "racist beliefs").
- Watkins v. United States, 354 U.S. 178, 197 (1957).
- Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 545 (1963). See Art. I, Sec. 8, Cl. 18: Congress's Investigation and Oversight Powers (1787-1864) to Art. I, Sec. 8, Cl. 18: Constitutional Limits of Congress's Investigation and Oversight Powers.
- DeGregory v. Att'y Gen., 383 U.S. 825, 829 (1966).
- Gibson, 372 U.S. at 545.
- DeGregory, 383 U.S. at 829.
- Gibson, 372 U.S. at 546.
- See generally First Amend.: Donor Disclosure Requirements.
- E.g., Uphaus v. Wyman, 360 U.S. 72, 78 (1959) (reasoning that the state legislature's requests related "directly to the Legislature's area of interest" and that the subpoena demand was not "burdensome").
- See Gibson, 372 U.S. at 547 (distinguishing Barenblatt v. United States, Wilkinson v. United States, and Braden v. United States, reasoning that "the necessary preponderating governmental interest and, in fact, the very result in those cases were founded on the holding that the Communist Party is not an ordinary or legitimate political party . . . and that, because of its particular nature, membership therein is itself a permissible subject of regulation and legislative scrutiny"). See First Amend.: Incitement Movement from Clear and Present Danger Test.
- 360 U.S. 109 (1959).
- Id. at 113. The Court upheld the contempt-of-Congress convictions of two other witnesses on similar grounds in Wilkinson v. United States, 365 U.S. 399 (1961) and Braden v. United States, 365 U.S. 431 (1961). By contrast, the Court overturned the contempt conviction of a New Hampshire resident, with a plurality of the Court concluding that the state attorney general's questioning of the witness about his and others' involvement in the Progressive Party exceeded the legislature's investigative mandate. Sweezy v. New Hampshire, 354 U.S. 234, 251-54 (1957) (plurality opinion).
- Barenblatt, 360 U.S. at 134. In this case, the Court appeared to place the burden on the witness to show why his interests "were not subordinate to those of the state." Id. According to the Court, there was "no indication" in the record that the subcommittee "was attempting to pillory witnesses" or employed "indiscriminate dragnet procedures, lacking in probable cause." Id.
- See Art. I, Sec. 6, Cl. 1: Overview of Speech or Debate Clause to Art. I, Sec. 6, Cl. 1: Persons Who Can Claim the Speech or Debate Privilege.
- Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 501 (1975).
- See Id. at 515-16 (Marshall, J., concurring in the judgment) (positing that the defendant in a contempt trial "may defend on the basis of the constitutional right to withhold information from the legislature, and his right will be respected along with the legitimate needs of the legislature").
- See First Amend.: Disclosure of Membership Lists.
- 424 U.S. 1, 65-66 (1976) (per curiam), superseded by statute, Bipartisan Campaign Reform Act(BCRA) of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 28, 36, 47 U.S.C.). The Court determined that the challenged contribution and expenditure limitations also implicated the freedom of association, as well as the freedom of speech; its holdings on these limitations are discussed in Freedom of Speech: Campaign Finance and the Electoral Process, First Amend.: Overview of Campaign Finance to First Amend.: Legislative Investigations.
- Id. at 66 (quoting Cal. Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79 (1974) (Powell, J., concurring)).
- Id. at 64 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)).
- Id. at 68.
- Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 88 (1982).
- Id. at 101-02.
- Doe v. Reed, 561 U.S. 186 (2010).
- Id. at 190-91.
- Id. at 192-93.
- Id. at 195-96. "Exacting scrutiny" is a First Amendment standard of review developed to evaluate disclosures in the election context. Id. at 196 (citing Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam), superseded by statute, BCRA of 2002, 116 Stat. 81).
- Id. at 198-201.
- No. 19-251, slip op. at 19 (U.S. July 1, 2021).
- Id. at 2.
- The plurality suggested that any disclosure requirement affecting association should receive exacting scrutiny. Id. at 7-8 (plurality opinion). Several Justices whose concurrence was necessary to the result in Bonta questioned this conclusion. See id. at 1-4 (Thomas, J., concurring in part and concurring in the judgment) (arguing that the Court's precedents require application of strict scrutiny, a higher standard), and id. at 2 (Alito, J., concurring in part and concurring in the judgment) (stating that he and Justice Gorsuch are "not prepared at this time to hold that a single standard applies to all disclosure requirements").
- Id. at 9-11 (majority opinion).
- Id. at 12-14.
- Similar arrangements in the private sector would not trigger First Amendment protection absent governmental action. Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 35 n.24 (U.S. June 27, 2018).
- See R. Emps.' Dep't v. Hanson, 351 U.S. 225, 231, 238 (1956) (suggesting that "forcing ideological conformity" through union membership would violate the First Amendment).
- See Knox v. SEIU, Local 1000, 567 U.S. 298, 310-11 (2012) (explaining that when the government "exacts compulsory union fees as a condition of public employment," those fees "constitute a form of compelled speech and association").
- 431 U.S. 209, 225-26 (1977), overruled by Janus v. AFSCME, Council 31, No. 16-1466, slip op. at 2 (U.S. June 27, 2018).
- Id. at 235-36.
- Id. at 235.
- Cases applying or questioning the Abood decision are discussed in more detail in First Amend.: Compelled Subsidization.
- Janus, slip op. at 497.
- Id. at 12, 17, 33.
- Norwood v. Harrison, 413 U.S. 455, 469-70 (1973) (explaining that "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections"); see also R. Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945) (rejecting a claim that New York Civil Rights Law interfered with an organization's "right of selection to membership" in violation of the Due Process Clause of the Fourteenth Amendment).
- See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting a law firm's argument that applying a federal nondiscrimination statute to its decision not to promote a female associate to partner would violate the firm's freedom of association); Runyon v. McCrary, 427 U.S. 160, 178 (1976) (holding that Congress can prohibit private schools from excluding children on the basis of race without violating a parent's or a child's right to free association).
- E.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
- Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984).
- Id. at 628-29.
- Id. at 623-26.
- Id. at 626.
- Id. at 627. The Court also held that the Jaycees did not have a right of "intimate association," because they lacked "the distinctive characteristics" of that form of association, such as small size, identifiable purpose, and selectivity in membership. Id. at 621.
- 481 U.S. 537, 547, 549 (1987).
- 487 U.S. 1, 10 (1988) (quoting N.Y.C. Admin. Code § 8-109(1) (1986)).
- Id. at 11-15.
- 515 U.S. 557, 561 (1995).
- Id. at 562-63.
- Id. at 568-69.
- Id. at 570.
- Id. at 572-73.
- Id. at 580.
- Id. at 580-81.
- 530 U.S. 640, 644 (2000).
- Id. at 648.
- Id. at 651.
- Id. at 653.
- 547 U.S. 47 (2006).
- Id. at 69. For additional discussion of Forum for Academic and Institutional Rights, Inc., see First Amend.: Requirements That Can Be Imposed Directly.
- Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 680 (2010).
- Id. at 668.
- Id. at 680-83.
- Id. at 697.
- Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
- Although the Court has characterized the right of intimate association as having First Amendment dimensions, it has not recognized any intimate relationships that qualify for constitutional protection under the First Amendment, other than those identified in its due process decisions. See See id. at 619-20 (citing due process decisions).
- Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977); see also, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (stating that "[w]ithout doubt," the "liberty" protected by the Fourteenth Amendment "denotes not merely freedom from bodily restraint but also the right of the individual" to marry and to "establish a home and bring up children").
- Roberts, 468 U.S. at 619.
- See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (reasoning that for a state to deny the "fundamental freedom" to marry on "so unsupportable a basis" as race would "deprive all the State's citizens of liberty without due process of law"); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that "same-sex couples may exercise the fundamental right to marry," that is "inherent in the liberty of the person").
- See Carey, 431 U.S. at 685 (stating that "the decision whether or not to beget or bear a child is at the very heart" of choices protected by the right of personal privacy implicit in the Fourteenth Amendment). See Fourteenth Amend., Sec. 1: Sexual Activity, Privacy, and Substantive Due Process.
- See, e.g., Meyer, 262 U.S. at 399 (reversing a teacher's conviction for teaching a student the German language, reasoning that the prohibition on teaching languages other than English in primary schools interfered with, among other things, "the power of parents to control the education of their own").
- Roberts, 468 U.S. at 619. See, e.g., Moore v. E. Cleveland, 431 U.S. 494, 506 (1977) (holding that an ordinance that prohibited certain relatives outside of the "nuclear family" from living together violated the Fourteenth Amendment).
- See Fourteenth Amend., Sec. 1: Family Autonomy and Substantive Due Process and Fourteenth Amend., Sec. 1: Marriage and Substantive Due Process.
- 485 U.S. 360, 362 (1988).
- Id. at 365-66 (internal quotation marks omitted). The Court also held that the law did not violate the associational rights of the striking worker and the worker's union. Id. at 366-68. See also Dep't of Hous. v. Rucker, 535 U.S. 125, 130, 136 n.6 (2002) (stating that Lyng "forecloses" tenants' freedom-of-association challenge against a statute authorizing local public housing authorities to "evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity").