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Right of Association

“It is beyond debate that freedom to engage in association for the advancement 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. . . . Of course, it[p.1057]is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”194 It would appear from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition,195 although it has at times seemingly been referred to as a separate, independent freedom protected by the First Amendment.196 The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty–security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.197

Freedom of association as a concept thus grew out of a series of cases in the 1950’s and 1960’s in which certain States were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the State. “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.”198 “[T]hese indispensable liberties, whether of speech, press, or association,”199 may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the State had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.

Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock,200 that the disclosure of membership lists, because of the harm to be caused to “the right of association,” could only be compelled upon a showing of a subordinating interest; ruled in Shelton v. Tucker,201 that while a State had a broad inter[p.1058]est to inquire into 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; again struck down an effort to compel membership lists from the NAACP;202 and overturned a state court order barring the NAACP from doing any business within the State because of alleged improprieties.203 Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, while other actions might not have been, the State could not so infringe on the “right of association” by ousting the organization altogether.204

A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment.205 “[A]bstract 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. . . . In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression. . . .

“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 Fourteenth Amendments protect certain forms of orderly group activity.”206 This decision was[p.1059]followed in three subsequent cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;207 in the second the union retained attorneys on a salary basis to represent members;208 in the third, the union maintained a legal counsel department which recommended certain attorneys who would charge a limited portion of the recovery and which defrayed the cost of getting clients together with attorneys and of investigation of accidents.209 Wrote Justice Black: “[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .”210

Thus, a right to associate together to further political and social views is protected against unreasonable burdening,211 but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was given birth.

Social contacts that fall short of organization or association to “engage in speech” may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the age of 14 and 18, the Court declared that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.”212

In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination[p.1060]requirements. First, Roberts v. United States Jaycees213 upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int’l v. Rotary Club of Duarte,214 the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass’n v. New York City,215 the Court upheld against facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the State’s compelling interest in prohibiting discrimination against women were important to the Court’s analysis. On the one hand, the Court found, “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e.g. small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women.”216 Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of intimate or private relation that warrants constitutional protection.”217 And in the New York City case, the fact that the ordinance “certainly could be constitutionally applied at least to some of the large clubs, under [the] decisions in Rotary and Roberts, the applicability criteria “pinpointing organizations which are ‘commercial’ in nature,” helped to defeat the facial challenge.218

Some amount of First Amendment protection is still due such organizations; the Jaycees and its members had taken public positions on a number of issues, and had engaged in “a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional protection.” However, the Roberts Court could find “no basis in the record for concluding that admission of women as full[p.1061]voting members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.”219 Moreover, the State had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages.”220

Because of the near–public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers—the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs.221 In New York City, the Court noted that “opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case–by–case analysis of specific facts.”222


Footnotes

194 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958) .
195 Id.; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960) ; United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971) ; Healy v. James, 408 U.S. 169, 181 (1972) .
196 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958) ; NAACP v. Button, 371 U.S. 415, 429–30 (1963) ; Cousins v. Wigoda, 419 U.S. 477, 487 (1975) ; In re Primus, 436 U.S. 412, 426 (1978) ; Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981) .
197 Infra, pp.1067–78.
198 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) .
199 Id. at 461.
200 361 U.S. 516 (1960) .
201 364 U.S. 479 (1960) .
202 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) .
203 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) .
204 Id. at 308, 309.
205 NAACP v. Button, 371 U.S. 415 (1963) .
206 Id. at 429–30. Button was applied in In re Primus, 436 U.S. 412 (1978) , in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to utilize the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. “[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” Id. at 431. “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 426. However, ordinary law practice for commercial ends is not given special protection. “A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978) . See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977) .
207 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964) .
208 United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) .
209 United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) .
210 Id. at 578–79. These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veteran’s death or disability claims before VA).
211 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175–76 (1976) ; Norwood v. Harrison, 413 U.S. 455, 469–70 (1973) ; Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93–94 (1945) ; Roberts v. United States Jaycees, 468 U.S. 609 (1984) .
212 City of Dallas v. Stanglin, 490 U.S. 19 (1989) . The narrow factual setting—a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that “coming together to engage in recreational dancing . . . is not protected by the First Amendment.” Id. at 25.
213 468 U.S. 609 (1984) .
214 481 U.S. 537 (1987) .
215 487 U.S. 1 (1988) .
216 468U.S. at 621 468U.S. at 621.
217 481U.S. at 546 481U.S. at 546.
218 487U.S. at 12 487U.S. at 12.
219 468U.S. at 626–27 468U.S. at 626–27.
220 468U.S. at 628 468U.S. at 628.
221 The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case–by–case approach is necessary to determine whether “the ‘zone of privacy’ extends to a particular club or entity.” 481U.S. at 547 481U.S. at 547 n.6.
222 487U.S. at 15 487U.S. at 15.

Supplement Footnotes

77 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation that city removed petitioner’s company from list of those offered towing business on a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the First Amendment). See also Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (termination or non– renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment).
68 515 U.S. 557 (1995) .
69 515U.S. at 580 515U.S. at 580.
70 515U.S. at 580–81 515U.S. at 580–81.
71 120S. Ct. 2446 (2000).
72 120 S. Ct. at 2451.
73 120 S. Ct. at 2452.
74 120 S. Ct. at 2453.
75 120 S. Ct. at 2453.
76 120 S. Ct. at 2454.
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