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 grievance.
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
- See Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 6 (U.S. July 1, 2021) (discussing Alabama ex rel. Patterson, 357 U.S. 449 (1958)).
- 357 U.S. at 460–61.
- Id. at 462–464.
- Bates v. City of Little Rock, 361 U.S. 516, 527 (1960).
- Id. at 524.
- Id. at 525.
- 366 U.S. 293, 297 (1961). The Court also held unconstitutional, on due process grounds, a statute requiring certain businesses with out-of-state contacts to certify that none of their officers is a member of a Communist or subversive organization, as a condition of doing business in the state. Id. at 294–95.
- Communist Party of United States v. Subversive Activities Control Bd., 367 U.S. 1, 4 (1961).
- Id. at 8–9.
- Id. at 9.
- Id. at 81.
- Id. at 88–89.