First Amendment — Freedom of Association

Amdt1.8.1 Overview of Freedom of Association

The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment’s text does not expressly identify a “freedom of association,”¹ the Supreme Court has recognized this right as “an indispensable means of preserving” other First Amendment freedoms.² Specifically, the Court “has recognized a right to associate for the purpose of engaging” in “speech, assembly, petition for the redress of grievances, and the exercise of religion.”³

This right of “expressive association” is the focus of this set of essays.⁴ The Court has also recognized a “personal liberty” interest in “certain intimate human relationships,” protected not only by the First Amendment, but also by the Due Process Clause of the Fourteenth Amendment.⁵ This concept of “intimate association” is discussed at the end of this section and in the essays on substantive due process.⁶

The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies” formed to petition the government.⁷ It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association.⁸ In 1937, the Court held that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”⁹ The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union “is protected not only as part of free speech, but as part of free assembly.”¹⁰

Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment.¹¹ By 1958, the Court considered it “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of” civil liberties such as the freedom of speech.¹² Although political association is a classic example of expressive association,¹³ the First Amendment also protects “forms of ‘association’ that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members.”¹⁴

Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati, the Court held that a local ordinance violated the freedoms of association and assembly on its face.¹⁵ The challenged ordinance made it a crime for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.”¹⁶ According to the Court, this ordinance was “aimed directly at activity protected by the Constitution”—the freedoms of association and assembly.¹⁷

More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one’s associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals.¹⁸ Accordingly, First Amendment protections “are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals,” but also by laws or regulations that may have a “chilling effect on association.”¹⁹

The Court’s decisions in this area, though not always reconcilable, reflect a balancing of First Amendment rights and governmental interests as well as the major political and social events of the era. For example, in the 1950s and 1960s, the Court adjudicated many cases in which the government asked U.S. citizens to reveal or disavow their actual or perceived affiliations with the Communist Party.²⁰ The Court largely credited concerns that states and the federal government expressed at that time about the security threat that Communism posed to the United States,²¹ even while applying increasing First Amendment scrutiny to laws that burdened the association of other groups.²² Describing its own decisions in 1963, the Court explained, “the Communist Party is not an ordinary or legitimate political party[,]” and thus, Party membership “is a permissible subject of regulation and legislative scrutiny.”²³ While the Court later abandoned some of its presumptions about the dangers of bare association, the Court’s care with respect to issues of national security remained evident in later cases, such as a 2010 decision upholding a ban on domestic support of designated foreign terrorist organizations.²⁴

Although many of the leading Supreme Court decisions on the freedom of association concerned burdens on association, the Court has also held that “compelled association” can violate the First Amendment.²⁵ For example, 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, particularly if those laws interfere with an organization’s message.²⁶

As with other individual rights protected by the Constitution, the freedom of association is not absolute.²⁷ First, the government may prohibit “agreements to engage in illegal conduct,” even though such agreements “undoubtedly possess some element of association.”²⁸ Second, forms of association that are neither “intimate” nor “expressive” within the meaning of First Amendment case law may not receive constitutional protection.²⁹ Third, as noted above, even when a law implicates protected association, the government’s interests may outweigh the burdens on association in some circumstances.³⁰ Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group’s concerns.³¹

Amdt1.8.2.1 Barriers to Group Advocacy and Legal Action

The Supreme Court has recognized that joining together to advance political and civil rights is “expressive and associational conduct at the core of the First Amendment’s protective ambit.”¹ Accordingly, when the government regulates in ways that restrict or burden such association, it typically must show that its law or action is narrowly drawn to achieve a compelling governmental interest.² In the Supreme Court’s words, “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”³

A state generally has the authority to regulate professions that it licenses, including attorneys.⁴ That authority may apply even to professionals’ speech, especially in a commercial context. For example, a state may restrict “in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons” in certain places, such as an accident scene, where consumers are particularly vulnerable to undue influence.⁵

When professionals are engaged in “political expression and association,” however, a state “must regulate with significantly greater precision.”⁶ In particular, the freedom of association includes a “basic right to group legal action” and protects “collective activity undertaken to obtain meaningful access to the courts.”⁷ This protection extends to the activities of lawyers and legal organizations themselves in some circumstances.⁸ Thus, a state may not bar organizations that use “litigation as a vehicle for effective political expression and association” from offering legal services to prospective clients based on “some potential” for violation of ethical standards.⁹

The 1963 case NAACP v. Button established that the First Amendment protects “cooperative, organizational activity” to pursue “legitimate political ends” through litigation.¹⁰ The case involved a Virginia law banning “the improper solicitation of any legal or professional business,” which the Virginia courts had construed to ban certain outreach activities of the National Association for the Advancement of Colored People, Inc. (NAACP) related to the provision of legal assistance.¹¹ The Supreme Court began its analysis by clarifying that “abstract 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.”¹² Although the NAACP “is not a conventional political party,” the Court explained, its litigation activity enables “the distinctive contribution of a minority group to the ideas and beliefs of our society.”¹³ “For such a group,” the Court continued, “association for litigation may be the most effective form of political association.”¹⁴ The Court therefore held that Virginia’s broadly construed law violated the First Amendment “by unduly inhibiting protected freedoms of expression and association.”¹⁵

Following the Button decision, the Court held in three cases that labor unions enjoyed First Amendment protection in assisting their members to pursue legal remedies. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;¹⁶ in the second, the union retained attorneys on a salaried basis to represent members;¹⁷ in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.¹⁸ In each case, the Court concluded that the government had an insufficient regulatory interest to prohibit the legal services at issue because the government relied on a remote possibility of harm to prospective clients resulting from unethical practices.¹⁹

Because not all forms of advocacy are protected under the First Amendment, not all associations for the purpose of advocacy are protected to the same degree. In Scales v. United States, the Court upheld the “membership clause” of the Smith Act, which, under the Court’s interpretation, made it a felony for an individual to be an active member of an organization that advocates the overthrow of the U.S. government by force or violence if the individual shares that specific intent.²⁰ The defendant in Scales was convicted based on his membership in the Communist Party of the United States.²¹ That group’s advocacy, the Court explained, “is not constitutionally protected speech.”²² The Court reasoned that membership in a group engaged in “forbidden advocacy” should receive no greater First Amendment protection than the proscribable speech itself.²³

Additionally, although access to the courts was a key consideration in Button, not all laws limiting such access burden the freedom of association. For example, the Court upheld a statutory limit on attorney’s fees for certain veterans’ benefits claims, reasoning that the limitation did not infringe the freedom of association because it applied “across-the-board to individuals and organizations alike.”²⁴ In another case, the Court concluded that waiving the court fees of indigent individuals, but not organizations, did not violate the First Amendment.²⁵ Because an organization could qualify for the fee waiver only if its members were individually indigent anyway, the Court reasoned, litigating as an organization would not materially assist their expressive capacity.²⁶ Thus, it appears that barriers to litigation are unlikely to impede the freedom of association if they have similar effects on individuals and organizations.

Amdt1.8.2.2 Election Laws

Even though states have broad authority to administer their elections, the Court has recognized the potential for state election laws to burden the associational rights of voters, candidates, and political parties.¹ Whether an election law “governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself,” it “inevitably affects” an “individual’s right to vote and his right to associate with others for political ends.”² In evaluating whether such a law comports with the First Amendment, the Supreme Court has balanced the interests of the state in administering its elections with the burdens of the challenged requirement on individual rights.³

States may impose some restrictions on a candidate’s or party’s access to the ballot. For example, the Court held that a state may require political parties to “demonstrate a significant, measurable quantum of community support” in order to appear on a general election ballot.⁴ Such a requirement serves the state’s “vital interests” in preserving “the integrity of the electoral process” and “regulating the number of candidates on the ballot to avoid undue voter confusion.”⁵ The Court also upheld, on similar grounds, a California election law prohibiting an individual from running as an independent candidate if that individual was defeated in another party’s primary during the same election cycle or had a registered affiliation with another political party within the preceding year.⁶

The Court has found other ballot-access requirements to unduly infringe the associational rights of candidates and voters.⁷ In 1974, the Court struck down an Indiana law forbidding a political party from appearing on an election ballot unless it filed an affidavit stating under oath that it did not advocate the overthrow of the government by force or violence.⁸ The Court held that the state could not condition access to the ballot on such a “loyalty oath,” because the First Amendment protects advocacy of violent overthrow as an “abstract doctrine.”⁹ In another case, the Court held that an Ohio law requiring individuals to file a statement of candidacy for the presidency in March—well before the major parties’ primaries and the November general election—unconstitutionally burdened the associational rights of independent voters.¹⁰ In 1992, the Court reversed a state supreme court decision barring a new political party from appearing on the ballot under a particular name.¹¹

The right of association generally protects a political party’s decisions about its internal structure and processes for choosing candidates for national office.¹² According to the Court, “a State cannot justify regulating a party’s internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair.”¹³ Several cases illustrate these principles. In Democratic Party of the United States v. Wisconsin, the Court held that while a state was free to allow non-Democrats to vote in its Democratic primary, it could not constitutionally compel the Democratic Party to seat the state’s delegates (who were bound by the primary results) at the party’s national convention.¹⁴ In Tashjian v. Republican Party, the Court held that a state could not prohibit the Republican Party from opening up its primary to independents.¹⁵ In California Democratic Party v. Jones, the Court held that California’s “blanket primary” violated political parties’ freedom of association because it “force[d] political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”¹⁶ Similarly, in upholding a Puerto Rico law authorizing an incumbent political party to fill an interim vacancy in a legislative seat held by that party, the Court ruled that the party did not need to open its election to nonmembers, analogizing the process to a party’s primary election.¹⁷

The Court is willing to let states restrict some individual political activity in order to protect the integrity and effectiveness of political associations. For example, the Court upheld a New York law requiring a voter to enroll as a party member at least thirty days before the general election each year in order to vote in the next primary for that party.¹⁸ The Court reasoned that the law was intended to prevent “party ‘raiding,’ whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary,” and that this was a “particularized legitimate purpose.”¹⁹ In contrast, the Court found the anti-raiding rationale insufficient to sustain an Illinois law that prohibited an individual from voting in a primary election because she had voted in another party’s primary within the preceding twenty-three months.²⁰ Unlike New York’s law, the Illinois law effectively “‘lock[ed]’ voters into a pre-existing party affiliation from one primary to the next,” requiring them to “forgo voting in any primary for a period of almost two years” in order to “break the ‘lock.’”²¹

Like election laws, government-imposed limits on contributions to political candidates or political organizations also can burden associational rights of candidates or organizations and their supporters.²² For example, the Court held that a local ordinance that imposed a $250 limit on “contributions to committees formed to support or oppose ballot measures” violated the freedom of association of the committees and their contributors.²³ A key factor for the Court was that “an affluent person” could “spend without limit to advocate individual views on a ballot measure,” but the ordinance restricted only contributions “made in concert with one or more others in the exercise of the right of association.”²⁴

The Supreme Court commonly analyzes First Amendment challenges to contribution limits and related campaign finance laws in terms of the burdens they might place on both the freedoms of speech and association.²⁵ These cases are discussed in the Freedom of Speech section of the First Amendment essay.²⁶

Amdt1.8.2.3 Denial of Employment or Public Benefits

Generally speaking, the First Amendment prohibits the government from denying an individual access to a job or profession because of the individual’s current or past associations alone. There are, however, some instances in which the Court has upheld employment-related restrictions on association, as discussed below.

During the 1950s and 1960s, the Supreme Court considered actions taken by the federal and state governments to address Communism in the workplace. In 1950, the Court considered the “grave and difficult problem” presented by a federal law that effectively “discouraged” unions from electing members of the Communist Party to leadership positions in the union.¹ While recognizing that the law affected protected association, the Court reasoned that the statute mainly regulated “harmful conduct” in the form of political strikes designed to obstruct labor relations and interstate commerce.² The Court upheld the law, concluding that it was directed not at what Communists “advocate or believe,” but what “they have done and are likely to do again.”³

Two years later, in Adler v. Board of Education, the Court upheld a New York law that disqualified members of the Communist Party and other state-designated organizations from holding offices or teaching positions in the public school system.⁴ The Court concluded that the state may deny these individuals “the privilege of working for the [public] school system” because of their “unexplained membership in an organization found by the school authorities, after notice and a hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.”⁵

By the mid-1960s, however, the Court largely had abandoned Adler’s reasoning.⁶ For example, in 1966, the Court considered an Arizona law that subjected a state employee to “immediate discharge and criminal penalties” if, at the time of taking the oath of office or thereafter, the employee knowingly was a member of the Communist Party or any other organization whose purposes included the overthrow of the state government.⁷ The Court held that this “guilt by association” approach violated the First Amendment.⁸ That the statute applied only to individuals who knew of the organization’s unlawful purpose did not save it.⁹ The Court held that a “law which applies to membership without the ‘specific intent’ to further the illegal aims of the organization infringes unnecessarily on protected freedoms.”¹⁰

In 1967, the Court likewise held unconstitutional a provision of the federal Subversive Activities Control Act of 1950 that prohibited a member of a “Communist-action organization” from gaining employment “in any defense facility.”¹¹ The Court concluded that the statute violated the First Amendment right of association because it swept “indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership.”¹² More precise regulation was needed, the Court explained, to address “the congressional concern over the danger of sabotage and espionage in national defense industries” and comply with the First Amendment.¹³ “It would indeed be ironic,” the Court observed, “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.”¹⁴

In a series of cases involving political patronage requirements that began in the 1970s, the Supreme Court held that the government cannot fire or demote a public employee because of the employee’s political affiliation except in narrow circumstances involving high-ranking employees with policy-making functions.¹⁵

Related to association-based employment restrictions are cases involving “loyalty oaths” that required government employees to disclaim membership in certain organizations. These cases are discussed in the Freedom of Speech essay because they involved compelled speech.¹⁶ The extent to which the government can require a prospective employee or applicant for a professional license to disclose prior associations is discussed in more detail in another essay.¹⁷

While the foregoing cases dealt with employment, the Court has also signaled that group association cannot be the sole basis for denying public benefits. For example, the Court held that a public university’s refusal to register a student group because of its affiliation with a national organization violated the students’ freedom of association.¹⁸ Similarly, a state may not require an individual to “forfeit” the right of association “as the price for exercising another” protected right.¹⁹

Amdt1.8.2.4 Conditions of Incarceration

Incarceration is a special context in which the government has more authority to restrict the freedom of association. The Supreme Court has explained that the “fact of confinement and the needs of the penal institution impose limitations on constitutional rights,” most notably, the freedom of association.¹ Accordingly, the standard of review for freedom-of-association claims is deferential to the government and prison administrators. The Court has held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”² In evaluating reasonableness, the Court has considered: (1) whether there is a “valid, rational connection between the prison regulation” and a “legitimate and neutral” governmental interest; (2) whether prison inmates have “alternative means of exercising the right” available to them; (3) the “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) the “absence of ready alternatives” to the regulation.³

Applying the “reasonable relationship” test, the Court upheld a ban on inmate solicitation and group meetings for a prisoners’ union;⁴ restrictions on visitation by children;⁵ and restrictions on certain types of correspondence between inmates.⁶ In contrast, the Court struck down a regulation prohibiting prisoners to marry only with the permission of the prison’s superintendent and only for “compelling reasons.”⁷ The Court held that the fundamental constitutional right to marry—a right of intimate association—applies in the prison context and that the regulation at issue was “not reasonably related” to the prison’s “security and rehabilitation concerns.”⁸

Amdt1.8.2.5 Material Support Bar

Although foreign organizations operating abroad generally do not have First Amendment rights,¹ the First Amendment does protect the associations of U.S. persons and residents, even if those associations are with foreign persons.² Still, the government may proscribe some types of interactions with foreign groups or individuals in the interest of national security.³

In Holder v. Humanitarian Law Project, two U.S. citizens and six domestic organizations challenged the constitutionality of a federal ban on providing material support or resources to designated foreign terrorist organizations.⁴ They argued that the law criminalized protected speech and association with two foreign groups that the United States had designated as foreign terrorist organizations.⁵ The Supreme Court agreed that the law restricted the freedom of speech, but it held that the United States’s interests in national security and combating international terrorism justified the prohibition.⁶

With regard to the plaintiffs’ freedom-of-association claim, the Court concluded that the statute did “not penalize mere association with a foreign terrorist organization,” suggesting that the First Amendment would protect membership in a foreign terrorist organization or independent advocacy of the group’s political goals.⁷ Instead, the Court reasoned, the statute prohibited only providing specified forms of material support to such organizations.⁸ In the plaintiffs’ case, that support took the form of providing training or legal expertise on issues of peaceful dispute resolution and humanitarian aid.⁹ To the extent the prohibition burdened association, the Court held, it was justified on the same national security grounds as the statute’s restrictions on speech.¹⁰

Amdt1.8.3.1 Associational Privacy

The Supreme Court has recognized “the vital relationship between freedom to associate and privacy in one’s associations.”¹ In some circumstances, government-compelled disclosure of an individual’s affiliations can expose that individual to harm in the form of threats, harassment, or economic reprisals.² This potential exposure may dissuade individuals from joining together for the purpose of collective advocacy, thus chilling protected speech and association.³ Accordingly, the Supreme Court has barred the government from compelling organizations to reveal their members, or individuals to reveal their memberships, in some circumstances.⁴

At the same time, the Court has not recognized an absolute right to privacy of one’s associations, often weighing the government’s interests in disclosure against the likelihood of harm resulting from the exposure.⁵ In some cases, this analysis took the form of a balancing test, with the government’s interests presumptively tipping the scales.⁶ In other cases, the Court applied a form of heightened scrutiny under which the government bore the burden of demonstrating that its interests in disclosure were sufficiently important to justify the intrusion into associational rights.⁷

Whether disclosure will be public also appears to be a factor in the Court’s analysis. For example, in Nixon v. Administrator of General Services, former President Richard M. Nixon challenged a federal law directing the Administrator of General Services to take custody of President Nixon’s papers and tape recordings and issue regulations governing the archival screening of the materials and public access to archived materials.⁸ The case involved several constitutional claims,⁹ one of which was that the screening process violated the President’s “rights of associational privacy and political speech.”¹⁰ The Supreme Court acknowledged that “involvement in partisan politics is closely protected by the First Amendment” and that compelled disclosure “can seriously infringe on privacy of association and belief,” but it ultimately concluded that the President’s First Amendment claim was “clearly outweighed by the important governmental interests promoted by” the federal law.¹¹

Amdt1.8.3.2 Disclosure of Membership Lists

The Supreme Court began to apply heightened scrutiny in cases involving compelled disclosure of association in a series of cases in the 1950s and 1960s in which certain states were attempting to thwart the activities of the National Association for the Advancement of Colored People, Inc. (NAACP).¹ In NAACP v. Alabama ex rel. Patterson, the Court unanimously set aside a state court’s contempt order against the NAACP for refusing to produce a list of its members within the state.² The state ostensibly requested the information to verify compliance with business registration requirements. The Court, however, held that the state had failed to demonstrate a need for the identities of the organization’s “rank-and-file members” that would outweigh the harm to publicly exposed members in the form of “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”³

The Court in Bates v. City of Little Rock also held that a city government could not constitutionally compel the NAACP to disclose its local members.⁴ In that case, there was “substantial uncontroverted evidence” that publicly identified members had experienced “harassment and threats of bodily harm.”⁵ The asserted governmental interest in that case was the assessment of occupational license taxes.⁶ Although the Court found this interest to be sufficiently compelling, it concluded that the city failed to demonstrate that obtaining and publishing local membership lists was “reasonably related” to this interest, given that the city could obtain information about businesses and occupations without collecting information about individual members.⁷ The Court reaffirmed in Louisiana ex rel. Gremillion v. NAACP, another case involving compelled disclosure of membership lists, that “regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights.”⁸

By contrast, the Court rejected a First Amendment challenge by the Communist Party of the United States to the federal Subversive Activities Control Act of 1950.⁹ Pursuant to the Act, the U.S. government determined that the Communist Party must register with the U.S. Attorney General as a Communist-action organization and provide the names and addresses of its officers and any individuals who were members during the previous twelve months.¹⁰ Registration, in turn, triggered other regulatory requirements.¹¹

After the Court upheld the “Communist action organization” designation as merely “regulatory,” it turned to the registration requirement itself, considering whether it infringed the right of party members to associate anonymously.¹² The Court acknowledged its holdings in NAACP and Bates, but it held that the federal government had a greater interest in registration than the state parties in those cases because Communist-action organizations are “substantially dominated or controlled” by foreign powers seeking “the overthrow of existing government by any means necessary.”¹³

Amdt1.8.3.3 Character and Fitness and Evidentiary Disclosures

Under Supreme Court precedent, states can require applicants for professional licenses to meet qualifications that are rationally related to the profession, including demonstrating “good moral character.”¹ However, as discussed in a previous section, a state generally cannot deny an individual a professional license solely on the basis of his or her past or present, lawful affiliations.² In a similar vein, inquiries into an applicant’s associations must be sufficiently tailored in light of their potential chilling effect on association.³

Character and fitness cases once produced “[s]harp conflicts and close divisions” in the Court, particularly following the federal and state investigations into Communist activity in the 1950s.⁴ In general, the Court’s decisions show a concern for character inquiries based on membership in Communist organizations, but more suspicion about inquiries based on other kinds of association. Thus, in Konigsberg v. State Bar of California, the Court allowed a state bar association to question an applicant, in private, about his prior membership in the Communist Party, citing California’s “interest in having lawyers who are devoted to the law in its broadest sense,” including “its procedures for orderly change.”⁵ And a decade later, the Court reaffirmed that “Bar examiners may ask about Communist affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusal to answer.”⁶ On the same day, however, a plurality of the Court concluded that the State Bar of Arizona could not deny admission to a candidate based on her refusal to divulge whether she had ever been a member of the Communist Party or any organization “that advocates overthrow of the United States Government by force or violence.”⁷ The difference between these two cases, in the plurality’s view, appeared to be the Arizona bar’s interest in organizations other than the Communist Party, which the plurality characterized as “[b]road and sweeping.”⁸

The breadth of the state’s inquiry was also at issue in Shelton v. Tucker.⁹ There, the Court ruled that, though a state had a broad interest in ensuring 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.¹⁰ The Court explained that the “unlimited and indiscriminate sweep of the statute” defeated its connection to a “legitimate inquiry into the fitness and competency” of public school teachers.¹¹

Disclosure of a person’s associations may be permissible during a sentencing hearing following a criminal conviction. The Supreme Court has explained that the “Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.”¹² However, those associations must be relevant to proving aggravating or mitigating circumstances, not just the defendant’s “abstract beliefs.”¹³

Amdt1.8.3.4 Legislative Inquiries

The First Amendment constrains government action, not just in the administration and enforcement of public laws, but also in conducting legislative investigations.¹ A legislature’s power of inquiry is “broad,” encompassing “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.”² Legislative investigations “may properly probe historic events for any light that may be thrown on present conditions and problems.”³ The Court has warned, however, that even if “the general scope of the inquiry is authorized and permissible,” a legislature is not necessarily “free to inquire into or demand all forms of information.”⁴ Because of First Amendment constraints, a legislature may not “probe” an individual’s associations “at will and without relation to existing need.”⁵

The test to be applied in balancing legislative interests against individual rights of association is not entirely settled. In a case concerning a state legislature’s investigation of the National Association for the Advancement of Colored People, Inc. (NAACP), the Court stated that to “intrude[ ] into the area of constitutionally protected rights of speech, press, association and petition,” the state must show “a substantial relation between the information sought and a subject of overriding and compelling state interest.”⁶ This test mirrors the exacting scrutiny standard the Court has applied in other contexts involving government-compelled disclosure of private associations.⁷

The Supreme Court appears to have applied a more relaxed standard of review in other cases involving legislative inquiries decided during the same time period,⁸ particularly those involving investigations into the associations and activities of members or suspected members of the Communist Party.⁹ For example, in Barenblatt v. United States, the Court held that a Subcommittee of the House Committee on Un-American Activities could question a witness about his membership in the Communist Party without violating the First Amendment.¹⁰ The Court reasoned that the hearing, which concerned “alleged Communist infiltration into the field of education,” involved a “valid legislative purpose,” because Congress had “wide power to legislate in the field of Communist activity in this Country” as a means of “self-preservation.”¹¹ If the Court applied a balancing test in this decision, it did not discuss the witness’s countervailing First Amendment interests.¹²

Although both state and federal legislatures may conduct investigations, congressional inquiries have the added protection of the Speech or Debate Clause, which generally protects the legislative actions of Members of Congress from judicial interference.¹³ In the 1975 Eastland decision, the Supreme Court cited the Speech or Debate Clause in declining to adjudicate a freedom-of-association-based challenge to a subpoena from a congressional subcommittee.¹⁴ Eastland involved a pre-enforcement challenge to a congressional subpoena, but the other cases discussed above suggest that a First Amendment defense may yet be available in a contempt proceeding for refusal to comply with a congressional subpoena.¹⁵

Amdt1.8.3.5 Donor Disclosure Requirements

As previously discussed, the Supreme Court has recognized a First Amendment interest in the privacy of one’s associations and held that compelled disclosure of an organization’s members can chill that protected association.¹ In 1976, in Buckley v. Valeo, the Court extended this reasoning to disclosure of a political candidate’s financial contributors required by federal campaign finance laws.² The Court observed that the “invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for ‘[f]inancial transactions can reveal much about a person’s activities, associations, and beliefs.’”³

In view of these considerations, the Court applied a heightened standard of review called “exacting scrutiny,” which the Court derived from its analysis in NAACP v. Alabama ex rel. Patterson.⁴ Under Buckley’s formulation of exacting scrutiny, the government must show a “substantial relation” between a “subordinating” state interest and the information required to be disclosed.⁵ Ultimately, the Court in Buckley concluded that the federal government’s interests in an informed electorate, deterring corruption, and detecting violations of certain contribution limits outweighed the right to contribute anonymously in that case.⁶

The Court reached a different conclusion with respect to state campaign finance disclosures as applied to “the Socialist Workers Party, a minor political party which historically has been the object of harassment by government officials and private parties.”⁷ In reasoning analogous to NAACP, the Court found that disclosure of either the parties’ contributors or the recipients of their campaign disbursements would “subject those persons identified to the reasonable probability of threats, harassment, or reprisal.”⁸

The Court also applied exacting scrutiny in a 2010 case involving the disclosure of petition sponsors rather than donors.⁹ In Doe v. Reed, voters seeking to challenge a state law through the referendum process had to submit a petition with the requisite number of signatures to the secretary of state.¹⁰ Such petitions were subject to public disclosure and included the names and addresses of signatories.¹¹ The Court held that petition activity is protected by the First Amendment and that disclosure requirements in the electoral context are subject to exacting scrutiny.¹² Balancing the relevant interests, the Court held that “preserving the integrity of the electoral process” by combating “petition-related fraud” was a sufficiently important purpose to justify the “modest burdens” that disclosure might cause.¹³

The balance of interests tilted in favor of the organizations and their donors in the Court’s 2021 decision in Americans for Prosperity Foundation v. Bonta.¹⁴ That case involved a California regulation requiring charities soliciting funds in the state to disclose to the State Attorney General the names, addresses, and total contributions of an organization’s significant donors.¹⁵ Although the Justices in the majority divided over the applicable level of First Amendment scrutiny,¹⁶ they agreed that under exacting scrutiny, the government must “narrowly tailor” a disclosure requirement to the asserted governmental interest.¹⁷ The majority concluded that California’s disclosure rule failed this requirement because of the “dramatic mismatch” between the state’s interest in preventing charitable fraud and its “up-front,” “blanket demand” for the disclosure.¹⁸

Amdt1.8.4.1 Union Membership and Fees

The First Amendment comes into play when the government or a public employer requires employees to join or financially support a union as a condition of employment.¹ Requiring employees to subsidize a union—even when membership is not required²—compels employees to fund the union’s speech, implicating both speech and expressive association.³

For over forty years, the Court’s decisions allowed such government-compelled union fees to some extent. In 1977, in Abood v. Detroit Board of Education, the Court ruled that public-sector employers could require their employees to pay agency fees to their union representatives for the purposes of collective bargaining, contract administration, and grievance procedures.⁴ Compulsory union fees—also called “agency fees”—could not, however, be used for political purposes.⁵ The Court reasoned that the First Amendment bars a state from compelling an individual “to contribute to the support of an ideological cause he may oppose as a condition” of public employment.⁶

Abood’s allowance of fees for activities germane to collective bargaining, though criticized at times by Members of the Court,⁷ held sway until 2018, when the Supreme Court overruled this aspect of the decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31.⁸ The Janus Court held that compulsory agency fees unduly burdened the speech and association of public-sector employees who did not want to join or financially support their workplace union.⁹

Amdt1.8.4.2 Nondiscrimination and Equal-Access Requirements

Nondiscrimination laws implicate the freedom of association to the extent that they require organizations to admit or otherwise associate with individuals that they would otherwise exclude. While the Supreme Court has recognized a right not to associate, it has also held that the Constitution “places no value on discrimination.”¹ Many of the cases involving freedom of association thus concern the interplay between government-imposed nondiscrimination or equal-access requirements and a group’s freedom to associate with individuals of its choosing.² The Supreme Court decisions in this area also are informed, in part, by the Court’s solicitude for an organization’s own freedom of speech.³

In general, the government may impose nondiscrimination requirements on private, social organizations through public accommodations laws and other statutory requirements if those laws “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”⁴ In Roberts v. United States Jaycees, the Court held that Minnesota, through its public accommodations law, could require the United States Jaycees to include women in its membership.⁵ The Court reasoned that the government had a compelling interest in ensuring that women had equal access to publicly available goods and services, including the programs offered by the Jaycees.⁶ Additionally, applying the law to the Jaycees advanced that interest through “the least restrictive means.”⁷ The exclusion of women, the Court ruled, was not necessary to preserve the integrity of the organization’s own expressive activities, which included civic, charitable, lobbying, fundraising, and other activities that did not depend on an all-male membership.⁸ The Court reached a similar decision, based on similar reasoning, three years later in Board of Directors of Rotary International v. Rotary Club of Duarte.⁹

Consistent with Roberts and Duarte, in New York State Club Association v. City of New York, the Court upheld New York City’s Human Rights Law, which prohibited race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and extended to certain private clubs.¹⁰ The Court reasoned that the City’s antidiscrimination law was neither invalid in all its applications nor “substantially overbroad” because the city could constitutionally apply the law to large clubs with commercial operations.¹¹

Essential to the holding of Roberts and Rotary International was the Court’s conclusion that including women in those organizations would not impinge on the organization’s ability to present its message. In contrast, where nondiscrimination requirements would affect an organization’s messaging, the Court has been more protective of the right of association under the First Amendment. In Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, the private organizers of Boston’s St. Patrick’s Day parade denied a group’s request to march in the parade.¹² The group claimed that its exclusion was based on its members’ sexual orientation and thus violated the state’s public accommodations law.¹³ The parade organizers responded that application of that statute would violate their freedom of expressive association.¹⁴ The Supreme Court agreed with the parade organizers. It first held that parades are a form of expression even if they lack a “particularized message” because marchers in a parade are usually “making some sort of collective point.”¹⁵ The Court next reasoned that the group sought to engage in expressive speech by marching as a unit celebrating its members’ gay, lesbian, and bisexual identities and Irish heritage.¹⁶ Because “every participating unit affects the message conveyed by the private organizers,” the Court reasoned, application of the statute would effectively conflict with the First Amendment by requiring the private organizers to “alter the expressive content of their parade.”¹⁷ The Court distinguished Roberts and New York State Club Association as not involving “a trespass on the organization’s message itself.”¹⁸ Even if the parade could be analogized to a large, private club, such that Massachusetts could “generally justify a mandated access provision,” the Court reasoned, the First Amendment would still allow such a group to “exclude an applicant whose manifest views were at odds with a position taken by the club’s existing members.”¹⁹

In Boy Scouts of America v. Dale, the Court similarly held that the First Amendment allowed the Boy Scouts of America to refuse a leadership role to an “avowed homosexual,” despite New Jersey’s public accommodations law.²⁰ 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.”²¹ The Boy Scouts, the Court found, engaged in expressive activity in seeking to transmit a system of values, which, for that organization, included opposing homosexual conduct.²² The Court also gave “deference to [the] association’s view of what would impair its expression.”²³ 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.”²⁴

The Court distinguished Dale in Rumsfeld v. Forum for Academic and Institutional Rights, Inc.²⁵ In holding that a law requiring colleges to allow military recruiters on campus did not violate the schools’ freedom of expressive association, the Court observed that “[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.”²⁶

The “close scrutiny” given to public accommodations laws that limit associational freedom in cases ranging from Roberts to Dale may not apply in all contexts.²⁷ Christian Legal Society Chapter of the University of California v. Martinez concerned a public law school’s “accept-all-comers policy” that required student organizations to “open eligibility for membership and leadership to all students” as a condition of registration.²⁸ A student organization argued that this policy violated their associational rights because the organization wanted to accept or exclude students based on their religion or sexual orientation.²⁹ The Court did not ask whether the policy was the least restrictive means of advancing the school’s interests in nondiscrimination. Instead, it analogized the school’s program for registered student organizations to a “limited public forum” where a regulation of First Amendment activity need only be reasonable and viewpoint-neutral.³⁰ The Court held that the policy met both of those requirements.³¹

Amdt1.8.5 Intimate Association

While the previous sections have focused on expressive association, the Constitution also protects certain forms of “intimate association.”¹ These protections primarily extend from the personal liberty interests protected by the Due Process Clause of the Fourteenth Amendment,² which the Court has construed to include an implied “right of personal privacy.”³ The relationships “entitled to this sort of constitutional protection” are “those that attend the creation and sustenance of a family,”⁴ including those formed through marriage,⁵ childbirth,⁶ child-rearing,⁷ and “cohabitation with one’s relatives.”⁸ Those constitutional liberties are discussed more fully elsewhere in the Constitution Annotated.⁹

Infrequently, the Supreme Court has considered the degree to which the First Amendment may also protect association in family and intimate relationships. In Lyng v. International Union, the Court rejected a First Amendment challenge to a federal law that denied eligibility for food stamps while any member of a household was on strike.¹⁰ The Court reasoned that the law did not violate the freedom of association of close relatives because it did not “directly and substantially interfere with family living arrangements.”¹¹