Freedom of Association

The Supreme Court has long held that the First Amendment's protection of free speech includes a "freedom of association." Generally, this means you can associate with others with similar beliefs.

This article discusses several topics related to the First Amendment's associational rights, including:

• The First Amendment's text and an explanation of the freedom of association

• How the Supreme Court's interpretation of the First Amendment led to the right’s development

• Limitations on the right to association

• Landmark Supreme Court cases involving the freedom of association

What the First Amendment Says

The First Amendment to the U.S. Constitution states the following:

"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."

What Is the Right to Freedom of Association?

The First Amendment right to association generally refers to the ability to associate with (or exclude) other individuals when engaging in free speech activities. Essentially, it protects the right to associate with others who have similar beliefs. For example, political parties and religious groups receive First Amendment protection via freedom of association.

Legal scholars note that there are two different strands of protected associations:

• Expressive association

• Intimate association

"Expressive association" refers to the people's right to associate and exercise First Amendment freedoms. Groups that engage in free speech or the exercise of religion fall under this category. The government generally cannot interfere with these groups' freedom of expression. Several Supreme Court cases address expressive association, including:

• Roberts v. United States Jaycees (1984)

• Boy Scouts of America v. Dale (2000)

Legal scholars note that expressive association is rooted in the First Amendment. As the Court noted in Roberts, "The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties."

"Intimate association" is rooted in the Fourteenth Amendment. An intimate association refers to a group comprised of "highly personal relationships." Generally, this means the group is full of known associates instead of strangers.

As the Court noted in Roberts, the choice to associate and "maintain certain intimate human relationships" is "a fundamental element of personal liberty." These associations play a "central role" in the constitutional scheme and in "safeguarding individual freedom." Therefore, they receive protection against "undue intrusion" by the government.

The right to associate is more than just a right to attend a meeting. Instead, it is "the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means." (Griswold v. Connecticut (1965)). The Supreme Court has stated that association in this context is a "form of expression of opinion."

The freedom of association also prohibits laws that require groups to include people they disagree with regarding certain political, religious, or other ideological subjects. The Court has held that compelling groups to include people can violate group members' freedom of association. (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)).

Free Speech and Freedom of Association

The states ratified the First Amendment and nine others with the Bill of Rights in 1791. It enumerates the following fundamental rights:

• Freedom of religion

• Freedom of speech

• Freedom of the press

• Freedom of assembly

The First Amendment's text does not explicitly provide for the freedom of association. However, the Supreme Court has found that the freedom to associate is "an indispensable means of preserving" other First Amendment freedoms.

The First Amendment freedoms imply a freedom of association. As Judge Frank Easterbrook noted during a panel at the Federalist Society's 1986 National Student Symposium, the First Amendment contains three express rights to group speech.

Freedom of the press describes "the exercise of the right of speech by organized groups." Freedom of religion addresses "another organized set of group speech." Freedom of assembly, he said, is "the organized exercise of the right to petition for the redress of grievances."

Given these express rights, Judge Easterbrook said there is a "logical right" to associate. The right to associate, he argues, gives effect to the right to free speech.

Similarly, the Supreme Court wrote in NAACP v. Alabama ex rel. Patterson (1958):

"It is beyond debate that freedom to engage in association for advancements 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."

In Griswold, the Court wrote that although the First Amendment does not expressly state a right to associate, "its existence is necessary in making the express guarantees fully meaningful."

In the NAACP case, Alabama tried to prevent the National Association for the Advancement of Colored People (NAACP) from operating in the state. A circuit court issued a restraining order against the state. In response, Alabama issued a subpoena for the NAACP's records, including membership lists.

The Supreme Court held that the state of Alabama could not obtain the NAACP's membership lists. It concluded that the state's interest in obtaining the records did not justify the potential deterring effect such disclosures could have on NAACP members' right of association. Specifically, exposing the NAACP's members' identities could subject them to harassment or worse.

The Court determined that the member's rights trumped the state's interest in obtaining the records. Therefore, the Court ruled Alabama could not obtain them. The Court recognized that compelling someone to disclose their group affiliation could inhibit their First Amendment rights. The court's decision solidified the idea underlying the freedom of association by protecting the "freedom to associate and privacy in one's associations."

Limits on the Freedom of Association

Like the freedom of speech, the freedom of association is not an absolute right. It has several limitations, and the government may infringe on your right of association in certain circumstances. For instance, the government may prevent people from entering into illegal private agreements. For example, groups cannot intend to deprive others of their civil liberties or legal rights. This is true even if the agreement possesses an element of association. (Brown v. Hartlage (1982)).

Further, the First Amendment does not protect every type of association. As noted above, it generally only protects expressive and intimate associations. Other types of associations do not fall within the First Amendment's protection.

For example, in Dallas v. Stanglin (1989), the Court held that states could license dance halls that only allowed teenagers to attend. In doing so, the Court stated that excluding adults from the dance halls did not violate "the teenagers' right to associate with people outside of their age group." The Court's holding declared that "there is no generalized right of 'social association' that includes chance encounters in dance halls."

Courts will balance the interests involved when a law purports to limit a group. The law is valid if the government's interests outweigh the burden it may place on members' rights. If the group members' rights outweigh the government's interest, a court will likely find that the law is invalid.

A valid infringement of the right of association requires the following:

• The infringement must be viewpoint-neutral

• The government must justify the infringement by showing a compelling interest

• The government must narrowly tailor the infringement

However, the government does not have to listen to a group or association's concerns. Of course, people have the right to associate and express their opinions. But, the government does not have an obligation to listen to their opinions.

The following section describes some of these exceptions in more detail.

Supreme Court Decisions Regarding the Freedom of Association

This section provides summaries of U.S. Supreme Court cases involving the freedom of association.

Board of Directors of Rotary International v. Rotary Club of Duarte (1984)

In 1984, the Court decided two significant cases regarding freedom of association. Both cases required the Court to balance laws prohibiting discrimination against constitutional protections.

The first, Board of Directors of Rotary International v. Rotary Club of Duarte, involved a California Rotary Club that violated its bylaws by allowing women to become active members.

The Duarte Rotary Club allowed three women to join the club, which violated its policy. Rotary International revoked its charter and expelled the club. The California Court of Appeals ruled that Rotary International's policy violated a California civil rights law prohibiting sexual discrimination.

Rotary International appealed to the Supreme Court. It argued that the civil rights law violated its right to association.

The Supreme Court concluded that the Rotary Club was neither an intimate nor expressive association. Therefore, the association did not receive First Amendment protection. The Court unanimously ruled that admitting women into the club would not prevent it from carrying out its stated purposes. Additionally, the Court held that even if admitting women as members of the club would affect some members' right to associate, the state's interest in ending sexual discrimination justified the minimal infringement.

Roberts v. United States Jaycees (1984)

Less than a month after deciding Rotary Club, the Court reviewed a similar challenge. This time, it involved a Minnesota civil rights law.

Roberts involved the Minnesota chapter of the United States Jaycees. Its bylaws limited membership to men between the ages of 18 and 35.

Two Minnesota chapters of the Jaycees began admitting women members in the mid-1970s. The national organization sanctioned the Minnesota chapters. In 1978, it informed the chapters that it was planning to revoke their charters.

Members of both chapters filed complaints with the Minnesota Department of Human Rights. They argued that the bylaws violated the Minnesota Human Rights Act (the "Act"). The Act prohibited groups from denying access to public accommodations based on gender.

The Jaycees filed a lawsuit against state officials. They sought to prevent the officials from enforcing the Act. Specifically, the group argued that forcing them to admit women would violate the male members' rights to association and free speech.

The case eventually reached the U.S. Supreme Court. The Court issued the following rulings:

• The Act did not infringe on male members' rights to freedom of association.

• The Jaycees did not have the type of highly personal relationships required to afford it protection against governmental interference. For example, the organization was large and did not employ criteria for judging whether someone could become a member. In addition, members (and non-members) of both genders participated in many activities central to the association's formation and maintenance.

• Minnesota had a compelling state interest in eliminating discrimination against women. The state's interest was separate and unrelated to the suppression of expression. The state's interest also outweighed any impact the Act may have on male members' freedom of association. The Act furthered the state's interest through the least restrictive means available.

The Court noted there was no evidence that admitting women into the Jaycees would impede the male members' ability to continue their constitutionally protected activities. Specifically, there was no evidence that doing so would negatively affect the Jaycees' ability to fundraise or promote its civic goals. And even if it did, the effect would not outweigh the state's goal of eliminating discrimination.

The majority opinion also discussed the underlying purpose of freedom of association. It noted that implicit in the right to engage in First Amendment freedoms is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." The Court noted that the right is "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority."

Both Rotary Club and Roberts shed light on the Court's method of balancing the right to associate and states' interests in eliminating discrimination. If a state law potentially infringes on a group's members' right to associate, courts will analyze whether the law advances a legitimate state interest. If it does, it will analyze whether the law does so in the least restrictive means available. It will also determine whether the law is related to the suppression of ideas.

In short, courts can override the freedom of association with laws the government adopts to serve a compelling state interest. The laws cannot relate to the suppression of ideas. Additionally, the state must show it cannot achieve its goal through less restrictive means.

If the law does not meet these conditions, courts will likely rule in favor of the group's members. See the discussions of Hurley and Dale below for examples of the Court refusing to apply anti-discrimination laws.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)

In Hurley, the Court had to decide whether a court order requiring a veteran's group to include an organization comprised of homosexual people to walk in a parade violated the veterans' freedom of association.

The city of Boston authorized the South Boston Allied War Veterans Council to organize the city's St. Patrick's Day parade in 1993. The Council refused to allow an organization, GLIB, to walk in the parade.

Individuals of Irish descent formed GLIB. Their goal was to "express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals."

After the denial, GLIB filed a lawsuit against the Council. It claimed that the Council violated a Massachusetts law that prohibited discrimination based on sexual orientation.

The trial court ruled that the Council had to allow GLIB to participate in the parade. The Supreme Judicial Court of Massachusetts affirmed the trial court's decision. The Council appealed to the U.S. Supreme Court.

The issue for the Court was whether the judicial order to admit GLIB into the parade violated the Council's First Amendment rights. More broadly, the issue was whether the First Amendment required a parade organizer to "admit a parade contingent expressing a message not of the private organizers' own choosing."

Justice David Souter wrote the Court's unanimous opinion. He first noted that parades are a form of speech. Participants in a parade make a "collective point" to each other and bystanders (citing Gregory v. Chicago (1969)). It also held that a parade organizer's selection of parade participants is entitled to First Amendment protection.

The Court noted that an important principle of free speech is that "one who chooses to speak may also decide 'what not to say.'" Because the lower court's order required the Council to admit GLIB into the parade, it had "the effect of declaring the sponsors' speech itself to be the public accommodation."

The Court noted that this opened the door to allow "any contingent of protected individuals with a message" to participate in the Council's speech. This would result in the Council's speech being shaped by any protected group that wished to join the parade. The Court ruled that the state could not use its power in such a way. Doing so, the Court wrote, would violate "the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message."

According to the Court, the Council's reasoning for excluding GLIB did not matter. Justice Souter wrote that the Council's decision to exclude GLIB from the parade was enough to "invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another." He added that "it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control."

Boy Scouts of America v. Dale (2000)

In Dale, the Court refused to apply an anti-discrimination law that prohibited discrimination based on sexual orientation. Like Hurley, the case stands for the idea that compelled association can violate the First Amendment.

The case involved an assistant Boy Scout scoutmaster, James Dale. His Boy Scout troop learned he was "an avowed homosexual and gay rights activist." The troop subsequently revoked his position. Afterward, Dale requested a reason for his dismissal. The Council Executive notified him that the troop "specifically forbid membership to homosexuals."

Dale filed a lawsuit in New Jersey state court. He alleged the Boy Scouts violated a New Jersey state law that prohibited discrimination based on sexual orientation.

The New Jersey Supreme Court ruled that the law required the Boy Scouts to admit Dale as a scoutmaster. The Boy Scouts appealed the decision to the Supreme Court. It argued that "homosexual conduct" was "inconsistent with the values" it sought to instill in its members.

The issue for the Court was whether applying New Jersey's anti-discrimination law "violated the Boy Scouts' right of expressive association." The Court ruled that it did. Specifically, the Court held that a state law requiring the Boy Scouts to retain Dale would "burden" its right to oppose or disfavor homosexual conduct.

The Court also held that New Jersey's interest in preventing discrimination did not justify the "severe intrusion" on the Boy Scouts' freedom of expressive association. The Court noted that it did not necessarily agree or disagree with the Boy Scouts' stance on homosexual conduct. However, regardless of the Court's stance with respect to homosexual conduct, it ruled that it did not justify a state law that would compel an organization to accept members "in derogation of the organization's expressive message."

In other words, the state could not interfere with a group's speech "for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem." Citing an earlier case, New York State Club Ass'n v. New York City (1988) and Roberts, the Court wrote that "forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, '[f]reedom of association ... plainly presupposes a freedom not to associate.'"

As the Constitution Annotated notes, Hurley and Dale reinforce that "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." This is especially true if the laws "interfere with an organization's message."