Freedom of Assembly
Freedom Of Association
Unlike the right of assembly, the Constitution makes no mention of the freedom of association. Through the late 1950s, decisions that broached the question of association considered it to be an aspect of other First Amendment liberties. This early view emerged in cases challenging the extent of Congress' power to question witnesses. They concerned the hearings of the House Committee on Un-American Activities (HUAC), during which lawmakers compelled reluctant witnesses to testify about the political associations of themselves, their friends, relatives, and colleagues, in an all-out attempt to identify Communists and so-called sympathizers. Refusal to testify could lead to charges of contempt. The Supreme Court curbed this power in Watkins v. United States (1957), holding that the use of such inquisitorial powers violated rights of association and privacy, endangered witnesses, and might even make other citizens avoid unpopular political ideas and assembling in groups.
In 1958, the Supreme Court took a defining step in NAACP v. Alabama ex rel. Patterson. The case grew out of the tumultuous struggle for civil rights. Alabama officials had resisted school desegregation and boycott efforts by the National Association for the Advancement of Colored People (NAACP), but when the organization persisted, prosecutors tried to prevent it from doing any further business in the state. Eventually, the state won a lower court order forcing the NAACP to disclose its membership records, which the organization refused to do in order to protect its members' safety. After the trial court fined it $100,000 for contempt, the Supreme Court reversed this decision and allowed the list to be kept private. Justice John Marshall Harlan II was persuaded by the NAACP's argument that forced disclosure of its membership would lead to economic reprisals, physical threats, and other kinds of public hostility. The state had failed to show a compelling interest that could outweigh these dangers. The contempt finding thus deprived the NAACP's members of their due process rights under the Fourth Amendment, and crucially, their constitutional right to free association. This right existed in the close relationship between the First Amendment rights of speech and assembly. Though enunciating the right for the first time, Justice Harlan noted that it "has been considered an essential element of the American political process since the early days of the nation's existence."
Following Patterson, the Supreme Court quickly issued similar decisions protecting individuals from divulging their association with groups. Again, in Bates v. Little Rock (1959), it allowed the NAACP to resist disclosing its membership lists. Shelton v. Tucker (1960) considered an Arkansas teacher competency statute which mandated that, as part of their review, teachers disclose every organization to which they had belonged. Evaluating a teacher's competency on this standard, the Court ruled, was too sweeping an invasion of her associational rights.
The Cold War era, characterized by extreme government suspicion of subversive activity, provided the Court with considerable opportunities to balance the rights of government and individuals. Here its decisions were inconsistent. Unlike the NAACP, the American Communist Party could be forced to disclose the names of its members because, as the Court held in Communist Party v. Subversive Activities Control Board (1961), the organization's activities posed dangers which the government had a substantial interest in controlling. Several cases challenged the constitutionality of the Smith Act of 1940, which prohibited conspiring to overthrow the government or merely promoting beliefs that advocated doing so. In particular, two cases challenged the law's restrictions on membership in groups committed to these ends. The Court determined that membership alone was insufficient grounds for conviction, but that convictions were constitutional when an individual was an active member who not only knew about the group's illegal activities but also intended to further them. Thus it upheld a conviction in Scales v. United States (1961) but overturned another in Noto v. United States (1961).
In cases decided in the 1970s and later, the Court looked negatively on attempts to make individuals espouse ideas or beliefs. Just as there was a right to associate, so, too, was there a right not to associate. Compelling association was unconstitutional, as was made clear in Abood v. Detroit Board of Education (1977). In Abood, Detroit school board employees were free not to join a union, but still had to pay a service fee that was equal to union dues. By compelling them to pay for political causes to which they were opposed, held the Court, board officials had violated the employees' right to choose not to associate. A similar decision was reached in Keller v. State Bar of California (1990), limiting the use of attorneys' mandatory state bar membership dues. Only if the bar showed that the dues were used for regulating and improving the legal profession could the dues be used to further political causes with which the members disagreed.
However, the right against compelled association proved to be far from absolute. When organizations claimed it in defense of discriminatory practices, the Supreme Court intervened to break down exclusive barriers to membership. This trend began in 1984 with Roberts v. U.S. Jaycees. After several women sued the national Jaycees, whose bylaws limited membership to men age 18 to 35, the organization defended its policy as an exercise of its free association rights. The Minnesota Supreme Court found the Jaycees had illegally discriminated on the basis of gender, and the Supreme Court agreed. It ruled that infringements on the right to association were sometimes constitutional, if they served important state interests and as long as the restrictions were unrelated to "the suppression of ideas". More state anti-discrimination laws were seen to promote the same valid interests in cases such as Rotary International v. Rotary Club of Duarte (1987) and New York State Club Association v. City of New York (1988), where clubs were forced to open their doors to all races and sexes.
In modern rulings, the importance of ideas and beliefs in the right to association stands paramount in Supreme Court doctrine. Time and again, it has emphasized that the right to association derives from the First Amendment and, as such, is protected only when it is asserted along with a First Amendment right. Thus it is not merely enough to claim that associational rights are violated simply because any kind of restriction exists, as did the plaintiffs who unsuccessfully challenged an ordinance in City of Dallas v. Stanglin (1989) that barred adults from entering dance halls for teenagers. An expressive purpose must be present to trigger constitutional protection. This purpose can be expressed in any number of ways, including through economic means. A boycott against white-owned businesses was held to be legal in National Association for the Advancement of Colored People v. Claiborne Hardware Co. (1982) because it was designed to further the goals of civil rights, but a boycott by trial lawyers who wanted higher fees to represent poor clients was held to have no First Amendment protection in FTC v. Superior Court Trial Lawyers Association (1990), because the lawyers' goal expressed no political ideas.
- Freedom of Assembly - Further Readings
- Freedom of Assembly - Political Expression
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