Expressive association first amendment rights

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” 1 Footnote
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958) . It appears from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition,2 Footnote
357 U.S. at 460 ; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960) ; United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971) ; Healy v. James, 408 U.S. 169, 181 (1972) . although it has at times been referred to as an independent freedom protected by the First Amendment.3 Footnote
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958) ; NAACP v. Button, 371 U.S. 415, 429–30 (1963) ; Cousins v. Wigoda, 419 U.S. 477, 487 (1975) ; In re Primus, 436 U.S. 412, 426 (1978) ; Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981) . The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.4 Footnote
See “Maintenance of National Security and the First Amendment,” infra.

Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain states were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the state. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” 5 Footnote
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) . “[T]hese indispensable liberties, whether of speech, press, or association,” 6 Footnote
357 U.S. at 461 . may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the state had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.

Applying the concept in subsequent cases, the Court, in Bates v. City of Little Rock ,7 Footnote
361 U.S. 516 (1960) . again held that the disclosure of membership lists, because of the harm to “the right of association,” could be compelled only upon a showing of a subordinating interest; ruled in Shelton v. Tucker 8 Footnote
364 U.S. 479 (1960) . that, though a state had a broad interest to inquire into 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; again struck down an effort to compel membership lists from the NAACP;9 Footnote
Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) . and overturned a state court order barring the NAACP from doing any business within the state because of alleged improprieties.10 Footnote
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) . Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, though other actions might not have been, the state could not infringe on the “right of association” by ousting the organization altogether.11 Footnote
377 U.S. at 308, 309 .

A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment.12 Footnote
NAACP v. Button, 371 U.S. 415 (1963) . “[A]bstract 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. . . . In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. . . .”

“We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity.” 13 Footnote
371 U.S. at 429–30 . Button was applied in In re Primus, 436 U.S. 412 (1978) , in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to use the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. “[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” Id. at 431 . “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 426 . However, ordinary law practice for commercial ends is not given special protection. “A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978) . See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977) , and see the comparison of Ohralik and Bates in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 296–98 (2007) ( “solicitation ban was more akin to a conduct regulation than a speech restriction” ). This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;14 Footnote
Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964) . in the second the union retained attorneys on a salaried basis to represent members;15 Footnote
United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) . in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.16 Footnote
United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) . Justice Black wrote: “[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .” 17 Footnote
401 U.S. at 578–79 . These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veterans’ death or disability claims before VA).

Thus, a right to associate to further political and social views is protected against unreasonable burdening,18 Footnote
E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175–76 (1976) ; Norwood v. Harrison, 413 U.S. 455, 469–70 (1973) ; Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ; Roberts v. United States Jaycees, 468 U.S. 609 (1984) . but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was born.

Social contacts that do not occur in the context of an “organized association” may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.” 19 Footnote
City of Dallas v. Stanglin, 490 U.S. 19, 24, 25 (1989) . The narrow factual setting—a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that “coming together to engage in recreational dancing . . . is not protected by the First Amendment.” Id. at 25 .

In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees 20 Footnote
468 U.S. 609 (1984) . upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int’l v. Rotary Club of Duarte ,21 Footnote
481 U.S. 537 (1987) . the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass’n v. New York City ,22 Footnote
487 U.S. 1 (1988) . the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts , both the Jaycees’ nearly indiscriminate membership requirements and the state’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. The Court found that “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e.g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.” 23 Footnote
468 U.S. at 621 . Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of intimate or private relation that warrants constitutional protection.” 24 Footnote
481 U.S. at 546 . And, in New York City , the fact “that the antidiscrimination provisions of the Human Rights Law certainly could be constitutionally applied at least to some of the large clubs, under the Court’s decisions in Rotary and Roberts ,” and the fact that the clubs were “'commercial’ in nature,” helped to defeat the facial challenge.25 Footnote
487 U.S. at 11–12 .

Some amount of First Amendment protection is still due such organizations; the Jaycees had taken public positions on a number of issues, and, the Court in Roberts noted, “regularly engage[d] in a variety of civic, charitable, lobbying, fundraising, and other activities worthy of constitutional protection under the First Amendment. There is, however, no basis in the record for concluding that admission of women as full voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.” 26 Footnote
468 U.S. at 626–27 (citations omitted). Moreover, the state had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages. . . .” 27 Footnote
468 U.S. at 628 .

Because of the near-public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers—the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs.28 Footnote
The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case-by-case approach is necessary to determine whether “the ‘zone of privacy’ extends to a particular club or entity.” 481 U.S. at 547 n.6 . In New York City , the Court noted that “opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case-by-case analysis of specific facts.” 29 Footnote
487 U.S. at 15 .

When application of a public accommodations law was viewed as impinging on an organization’s ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group .30 Footnote
515 U.S. 557 (1995) . To do so would require parade organizers to promote a message they did not wish to promote. Roberts and New York City were distinguished as not involving “a trespass on the organization’s message itself.” 31 Footnote
515 U.S. at 580 . Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group “could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.” 32 Footnote
515 U.S. at 580–81 .

In Boy Scouts of America v. Dale ,33 Footnote
530 U.S. 640 (2000) . the Court held that application of New Jersey’s public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization’s “ First Amendment right of expressive association.” 34 Footnote
530 U.S. at 644 . 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.” 35 Footnote
530 U.S. at 648 . The Boy Scouts, the Court found, engages in expressive activity in seeking to transmit a system of values, which include being “morally straight” and “clean.” 36 Footnote
530 U.S. at 650 . The Court “accept[ed] the Boy Scouts’ assertion” that the organization teaches that homosexual conduct is not morally straight.37 Footnote
530 U.S. at 651 . The Court also gave “deference to [the] association’s view of what would impair its expression.” 38 Footnote
530 U.S. at 653 . 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.” 39 Footnote
530 U.S. at 653 . In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 69 (2006) , the Court held that the Solomon Amendment’s forcing law schools to allow military recruiters on campus does not violate the schools’ freedom of expressive association because “[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. This distinction is critical. Unlike the public accommodations law in Dale , the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” Rumsfeld is discussed below under “Government and the Power of the Purse.” See also Andrew Koppelman and Tobias Barrington Wolff , A Right to Discriminate?: How the Case of Boy Scouts of American v. James Dale Warped the Law of Free Association (Yale University Press, 2009).

Footnotes 1 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958) . 2 357 U.S. at 460 ; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960) ; United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971) ; Healy v. James, 408 U.S. 169, 181 (1972) . 3 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958) ; NAACP v. Button, 371 U.S. 415, 429–30 (1963) ; Cousins v. Wigoda, 419 U.S. 477, 487 (1975) ; In re Primus, 436 U.S. 412, 426 (1978) ; Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981) . 4 See “Maintenance of National Security and the First Amendment,” infra. 5 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) . 6 357 U.S. at 461 . 7 361 U.S. 516 (1960) . 8 364 U.S. 479 (1960) . 9 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) . 10 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) . 11 377 U.S. at 308, 309 . 12 NAACP v. Button, 371 U.S. 415 (1963) . 13 371 U.S. at 429–30 . Button was applied in In re Primus, 436 U.S. 412 (1978) , in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to use the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. “[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” Id. at 431 . “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 426 . However, ordinary law practice for commercial ends is not given special protection. “A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978) . See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977) , and see the comparison of Ohralik and Bates in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 296–98 (2007) ( “solicitation ban was more akin to a conduct regulation than a speech restriction” ). 14 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964) . 15 United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) . 16 United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) . 17 401 U.S. at 578–79 . These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veterans’ death or disability claims before VA). 18 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175–76 (1976) ; Norwood v. Harrison, 413 U.S. 455, 469–70 (1973) ; Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945) ; Roberts v. United States Jaycees, 468 U.S. 609 (1984) . 19 City of Dallas v. Stanglin, 490 U.S. 19, 24, 25 (1989) . The narrow factual setting—a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that “coming together to engage in recreational dancing . . . is not protected by the First Amendment.” Id. at 25 . 20 468 U.S. 609 (1984) . 21 481 U.S. 537 (1987) . 22 487 U.S. 1 (1988) . 23 468 U.S. at 621 . 24 481 U.S. at 546 . 25 487 U.S. at 11–12 . 26 468 U.S. at 626–27 (citations omitted). 27 468 U.S. at 628 . 28 The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case-by-case approach is necessary to determine whether “the ‘zone of privacy’ extends to a particular club or entity.” 481 U.S. at 547 n.6 . 29 487 U.S. at 15 . 30 515 U.S. 557 (1995) . 31 515 U.S. at 580 . 32 515 U.S. at 580–81 . 33 530 U.S. 640 (2000) . 34 530 U.S. at 644 . 35 530 U.S. at 648 . 36 530 U.S. at 650 . 37 530 U.S. at 651 . 38 530 U.S. at 653 . 39 530 U.S. at 653 . In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 69 (2006) , the Court held that the Solomon Amendment’s forcing law schools to allow military recruiters on campus does not violate the schools’ freedom of expressive association because “[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. This distinction is critical. Unlike the public accommodations law in Dale , the Solomon Amendment does not force a law school ‘to accept members it does not desire.’” Rumsfeld is discussed below under “Government and the Power of the Purse.” See also Andrew Koppelman and Tobias Barrington Wolff , A Right to Discriminate?: How the Case of Boy Scouts of American v. James Dale Warped the Law of Free Association (Yale University Press, 2009).