Freedom of association: Definition from Answers.com

The freedom of individuals to associate as an end in itself or with a view to pursuing common projects, e.g. through churches, trade unions, political parties, and sporting clubs. Freedom of association is widely seen by liberal political philosophers as a core personal liberty, warranting strict protection by the state, though the exact contours of the freedom, and how it is appropriately balanced against other values, are a matter of considerable and continuing dispute. John Stuart Mill, in On Liberty, argues that citizens should have ‘freedom to unite for any purpose not involving harm to others’, a formulation which leaves open the question of what counts as sufficient harm to others to justify state interference. John Rawls (1921-2002), in Political Liberalism (1993), argues that freedom of association is a ‘basic liberty’ because, and to the extent that, it is an extension of liberty of conscience. One major point of controversy concerns the extent to which freedom of association should be understood to include the right to refuse membership of a given association to others who may wish to join it. May and should the state strike down membership rules which exclude on the basis of ascriptive characteristics such as race and gender? A considerable body of case law has recently emerged in the United States on this issue. There, the Supreme Court has determined that the United States Constitution asserts two fundamental rights of free association: a right of intimate association and a right to associate for expressive (essentially, religious or political) purposes. Where associations fail to meet the Court's demanding criteria of intimacy, the Court has ruled that government may require associations to satisfy equal opportunity norms in their membership policies unless departure from these norms will clearly undermine the association's specific expressive purposes (see especially Roberts, Acting Commissioner, Minnesota Department of Human Rights, et al. v. United States Jaycees, 468 U.S. 609 (1984) ). Critics argue that it is unreasonable to expect associations to show that all membership policies are rationally derived from their expressive purposes. Such an expectation, critics claim, will inhibit the evolution of associations over time and thus make for a poorer associational life overall. Another major point of controversy concerns the extent to which individuals should have the right to refuse membership of associations that others would like them to join, e.g. a trade union at a given place of work. Enforced membership in such cases may violate liberty of conscience, though complete voluntarism may also result in situations where some individuals unfairly free-ride on the associational activism of others.

— Stuart White

This entry contains information applicable to United States law only.

The right to associate with others for the purpose of engaging in constitutionally protected acti- vities.

The right to associate is not an independent constitutional right but is derived from and dependent on the First Amendment guarantees of freedom of speech and expression. It is protected only to the extent that it is asserted in conjunction with a First Amendment right. However, some legal scholars maintain that freedom of association is more fundamental than the rights enumerated in the Constitution because without it those other rights have little meaning.

One early case to recognize freedom of association was NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). In Patterson, the Supreme Court held that a lower court's order compelling the NAACP to disclose records containing the names and addresses of its Alabama members violated the group's right to associate freely. The Court recognized freedom of association as an adjunct to the NAACP's free speech rights and held that the freedom to associate for the advancement of beliefs and ideas is inseparable from the freedom of speech.

General types of association unrelated to First Amendment rights are not protected by the Constitution. For instance, in City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989), the Court held that a city ordinance limiting adult entrance into teenage dance halls did not violate the associational rights of either the adults or the minors. The association of adults and minors in a social setting does not fall within the purview of any rights protected by the First Amendment and therefore is not a constitutionally protected activity.

The activities of groups organized to pursue economic activity are sometimes protected if the individuals have come together to advance beliefs or ideas. Generally, the Court's decisions in this area depend on whether the economic activities are found to be sufficiently expressive to invoke First Amendment protection. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982), the NAACP was held not liable for economic damage suffered by merchants in a boycott it had sponsored. The boycott was a legal, nonviolent action against white merchants to pressure them to comply with civil rights laws. The Court found that though clearly an economic activity, it was primarily designed to advance the NAACP's political beliefs in civil rights. This added purpose gave the boycott an expressive character sufficient to warrant First Amendment protection. On the other hand, an economic boycott that is not intended to express political ideas or beliefs is not protected under the First Amendment. In FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768, 107 L. Ed. 2d 851 (1990), the Court found that a boycott organized by trial lawyers in an effort to secure increased compensation for their representation of indigent clients was a fundamentally economic activity that did not rise to the level of expressive conduct contemplated by the First Amendment.

During the 1940s and 1950s, a number of cases tested the constitutionality of the Alien Registration Act (also known as the Smith Act) (18 U.S.C.A. § 2385), which makes it a crime to conspire to overthrow the government or promote doctrines that advocate sedition. The act was sometimes used to prosecute individuals merely for their membership in organizations suspected of promoting insurrection. The general principle that evolved from these cases is that an individual cannot be punished for membership in an organization that is committed to illegal conduct, unless he or she is an active member with knowledge of the organization's illegal objectives and specific intent to further those objectives. (See Noto v. United States, 367 U.S. 290, 81 S. Ct. 1517, 6 L. Ed. 2d 836 [1961]; Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 [1961]). This principle has also been applied to invalidate blanket prohibitions on government employment or membership in organizations such as a state bar because of an individual's past associations. The government may inquire into past associations, but must limit the inquiry to the person's actual knowledge of illegal activity and intent to further it. (See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 [1957]; United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 [1967]).

The outcome of cases challenging indirect government regulation of freedom of association has been somewhat inconsistent. In general, the Court has balanced the individual's associational interests against the state's interests. In the early twentieth century, the Supreme Court held that a Ku Klux Klan membership list had to be disclosed because the members' freedom of association was subordinate to the state's interest in controlling the Klan's illegal activities (New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184 [1928]). Similarly, in 1961 the Court upheld a forced disclosure of the Communist party's membership because of the perceived dangers posed by the party's activities (Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 [1961]). Conversely, in 1958, in Patterson, the Court had struck down the state's order that the NAACP disclose its membership, distinguishing Bryant on the grounds that the Klan was involved in illegal activities, whereas the NAACP was not. A similar rationale was applied in Communist Party. In the late twentieth century, the Court moved away from the balancing approach toward a strict scrutiny standard that made it more difficult for the government to impinge indirectly on freedom of association.

In general, freedom of association includes the right to be free from compelled association. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual to support or espouse ideals or beliefs with which he or she disagrees. Similarly, in Keller v. State Bar, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990), the Court held that mandatory state bar membership dues could not be used to further ideological causes with which some members might disagree, unless the state could show that the expenditures were incurred for the purpose of regulating the legal profession or improving the quality of legal service.

When the right to be free from compelled association is exercised on the basis of race, gender, religion, or sexual orientation, competing constitutional rights clash. Such was the dilemma faced by the Court in Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). The Jaycees is a national organization whose bylaws limited full membership to men age eighteen to thirty-five. When a group of women challenged their exclusion, this policy was held unconstitutional. The Court found that the state's interest in eliminating gender discrimination outweighed the male Jaycees' interest in freedom from compelled association. Although the Court reiterated its position that freedom of association is fundamental, it also stated that such freedom is not absolute: "Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."

The Court has also recognized a constitutional right to freedom of intimate association, the fundamental human right to create and maintain intimate human relationships. Freedom of intimate association is generally included within the right of privacy as enunciated in cases such as Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), invalidating a state statute forbidding use of contraception; Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), holding a Texas law criminalizing abortion unconstitutional; and Carey v. Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), holding limits on distribution of contraceptives and contraceptive information unconstitutional.

See: Club; Communism; Griswold v. Connecticut; National Association for the Advancement of Colored People; Roberts v. United States Jaycees; Roe v. Wade.