This page was updated September 17, 2000
The First Amendment does not specifically mention the right of association. The concept can be understood to have grown out of the First Amendment's guarantee of a right to peaceably assemble and petition the government. To petition the government effectively one might join others who have the same grievances. This liberty, then, was conceived to protect an association of people to achieve some lawful political end.
Some commentators consider the right of association as a "penumbra" of the First Amendment which protects the privacy of certain kinds of organizational memberships. Other commentators recognized "freedom of association" as a natural right and thereby a fundamental one.
The necessity of this fundamental right can be best understood in the context of our early history with England: In the 1600s, the English crown curtailed the press by licensing schemes and in the mid-1700s used libel laws to do so. Political associations were then created which began to assert great influence on public opinion and thereby on parliament and the crown. By 1765, parliament had begun to suppress political associations of all kinds. And by 1799, most were declared unlawful. The United States Bill of Rights was adopted in 1791.
The freedom of association protects one's membership in any organization that is not involved in criminal activity.
Jeremy Bentham in his treatise Fragments on Government, (1776) wrote that governments are free that recognize: "The liberty of public association; or the security with which malcontents may communicate their sentiments, concert their plans, and practice every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them."
Thomas Paine in his The Rights of Man (1791) wrote that "The end of all political associations is, the preservation of the rights of man, which rights are liberty, property, and security; that the nation is the source of all sovereignty derived from it... ."
Judicial recognition of the right association in the United States is relatively recent. The U.S. Supreme Court recognized a constitutionally protected right of association as a means of guaranteeing the rights of individuals who protested during the civil rights movement.
Although the high court in De Jonge v. Oregon, 299 U.S. 353 (1937) showed a distaste for guilt by association and reversed De Jonge's conviction for conducting a public meeting under the auspices of the Communist Party, the court didn't solidify this stance for nearly three decades.
The high court was late in recognizing the same protection for Communist Party and Ku Klux Klan membership roles -- as it had for members of the National Association for the Advancement of Colored People.
Discrimination hiding in the guise of freedom of association, as in the U.S. Jaycees and the Rotary Club International, has been struck down by a unanimous Supreme Court, ruling that any associational right involved in these cases was far outweighed by society's interest in equal treatment of women and men. See Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) and Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987).
In the case New York State Club Association v. City of New York, 487 U.S. 1 (1988), the high court unanimously upheld a New York City law that prohibited discrimination based on sex in any private club with more than 400 members involved directly or indirectly in furthering trade or business.
"The Constitution does not expressly provide for a right of association.
Gradually, however, the First Amendment and the `liberty' interest secured by
the Fourteenth Amendment have been interpreted to protect a person's right to
associate with others who share similar ideas, interests, and goals.
Self-government is more than Self. In many ways, America is a nation of joiners.
Americans band together to seek friendship, cooperation, and concerted action.
"Associational rights were heavily litigated throughout the 1940s and 1950s, usually involving a person's membership in the Communist party or in organizations considered subversive to the national interest. For a time, these memberships were punished by the government." _Louis Fisher, American Constitutional Law. p. 537. McGraw-Hill, 1990
"Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, this Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees ... . [F]undamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined." _ Chief Justice Warren Burger, Richmond Newspapers, Inc. v. Virginia (1980)
"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 ... It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." _ Justice John Marshall Harlan, NAACP v. Alabama (1958)
"Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry -- a government dedicated to the establishment of justice and the preservation of liberty. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States." _ Justice Potter Stewart, Bates v. Little Rock (1960)
"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 the Fourteenth Amendments protect certain forms of orderly group activity." _ Justice William Brennan, NAACP v. Button (1963)
"... we hold simply that groups which themselves are neither engaged in subversive or other illegal or improper activities nor demonstrated to have any substantial connections with such activities are to be protected in their rights of free and private association." _ Justice Arthur Goldberg, Gibson v. Florida Legislative Investigative Committee (1963)
"Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. ... A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here." _ Justice William O. Douglas, Elfbrandt v. Russell (1965)
"Implicit in the term `national defense' is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic 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." _ Chief Justice Earl Warren, United States v. Robel (1967)
National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958) -- the U.S. Supreme Court strikes down Alabama's statute that demanded the membership roles of the NAACP and recognizes, for the first time, a constitutionally protected right of association: "We hold that the immunity from state scrutiny ... is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing to come within the protection of the Fourteenth Amendment."
Bates v. City of Little Rock, Arkansas, 361 U.S. 516 (1960) -- Tax ordinances of two Arkansas cities demanded that the NAACP supply them with the lists of names of local members. The high court held that the cities had not demonstrated "so cogent an interest" that it would balance against the right of association as protected by the Due Process Clause of the Fourteenth Amendment.
Shelton v. Tucker, 364 U.S. 379 (1960) -- Arkansas passed a law that required teachers in state-supported schools to file affidavits listing all the organizations to which they belonged. The law was aimed at exposing teachers who belonged to NAACP. Teachers, who didn't have their contracts renewed because they refused to to comply, brought suit claiming the law violated their rights to personal, academic, and associational rights. The high court found the state law went "far beyond what might be justified in the exercise of the State's legitimate inquiry into the fitness and competency of its teachers."
NAACP v. Button, Attorney General of Virginia, 371 U.S. 415 (1963) -- In 1956, Virginia amended its regulations governing ethical conduct of attorneys to forbid solicitation of clients by an agent of an organization that litigates a case in which it is not a party and has no pecuniary interest. The regulation was aimed at the NAACP. By a 6-3 votes the Supreme Court held that the regulation impermissibly infringed on the right of association.
Gibson v. Florida Legislative Investigative Committee, 372 U.S. 539 (1963) -- The legislative committee was investigating Communist infiltration into various organizations. The committee asked for the membership roles of the Miami Branch of the NAACP to see whether there was infiltration or domination by the Communist Party. NAACP refused. The high court found no compelling state interest and no evidence of infiltration.
Elfbrandt v. Russell, et al. 384 U.S. 11 (1966) -- High court strikes down "guilt by association" statutes. State employees in Arizona were forced to take an oath to support the federal and state constitutions. Under legislative gloss, an employee could be discharged from office and prosecuted for perjury if the employee took the oath and was found to be a member of the Communist Party or any organization that seeks the overthrow of the state government. Unconstitutional, said the court.
United States v. Robel 389 U.S. 258 (1967) -- The high court struck down a congressional statute that sought to punish workers at a defense facility who were members of the Communist Party. The court found the statute reaches too broadly by including inactive members and those employed in nonsensitive areas. The court further found the statute over reaching in limiting association which may not be limited.
Boy Scouts of America v. Dale 120 S.Ct. 2446 (2000) -- A majority of the high court held that New Jersey's anti-discrimination law violated the Boy Scouts of America's right to associate and its right to free speech when the law was interpreted to require that the BSA had to admit a homosexual scout leader. This decision gives greater legal force to the right to associate.
California Democratic Party v. Jones 120 S.Ct. 2402 (2000) -- The high court struck down California's blanket primary law in which all registered voters in a primary could vote for any candidate of any party. California's political parties challenged the law based upon their associational rights.
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