December 27, 2023 | SCOTUS Issues Term’s First Decision – Finds ADA Case Moot
|The most direct way that a government could infringe upon the freedom of association would be to punish citizens for associating or being members of a group. Because of this, punishment for group membership is only allowed under very specific circumstance – when the government has proven that a person is actively affiliated with a group, knows of its illegal objectives, and has specific intent to further those objectives.
Like the other First Amendment related rights, case law about government restriction of the freedom of association occurred significantly during the Cold War. In Scales v. United States, the Supreme Court affirmed the conviction of a chairman of a state communist party. The Court reasoned that if the group’s speech advocating illegal actions was not protected speech, then the association of a group to promote the same would not be protected under the First Amendment either. The majority settled on a test that would be applied in future cases: group membership will not have protection if the person is affiliated with a group, knows of its illegal goals, and has intent to further those illegal goals. Another case decided that same day, Noto v. United States, reversed a similar conviction because there was no evidence of the individual’s own intent to commit illegal activities.
The test used in Scales has been used by the Court in the areas of employment and bar membership as well. In Elfbrandt v. Russell, the Court struck down a state’s loyalty oath and ban on anyone holding office who was a member of the Communist Party. The Court held that the government couldn’t punish someone due to their membership in a group unless they could prove that they knew of the group’s illegal objectives and also intended to further them – doing so would violate the First Amendment. Simply membership alone would only be guilt by association, and is not enough to be constitutional.
In Baird v. State Bar and In re Stolar, the Court invalidated state bar questions asking if the applicant had ever been a member of the Communist Party or other anti-government groups. While these questions were struck down, the Court upheld a question in Law Students Civil Rights Research Council v. Wadmond, because it specifically asked if the applicant intended to carry out a group’s violent anti-government goals.
|Scales v. United States (1961)
Sometimes the suppression of the freedom of association can happen in more subtle ways than outright punishment. When groups are forced to disclose their members, this can have a “chilling” effect on association. This happens particularly with groups that have dissident or minority views, where being publicly associated with an unpopular group may harm them. Removing privacy from the freedom of association can make people less likely to join together and associate, thereby weakening the freedom of expression. Because the privacy of association is so important, the government can only force group’s to disclose members if it successfully passes strict scrutiny – the most difficult standard. However, this standard only applies in cases where disclosure will also chill or hurt association.
The Court, in the 1958 decision NAACP v. Alabama ex. Rel. Patterson, used strict scrutiny to strike down an Alabama order. An Alabama law required certain out of state corporations to meet certain disclosure requirements. Alabama demanded that the NAACP give up a full list of its members and held them in contempt of court for refusing to do so. Given the timing, in the midst of the Civil Rights Movement, releasing the names of every NAACP member in a southern state like Alabama would have opened up the exposed members to violence and harassment. The fear of experiencing this would likely have had a chilling effect on association, because people would be intimidated by the chance they would be revealed as members.
The Court stated that the freedom of association, and the privacy that comes along with it, was protected under the First Amendment and the Fourteenth Amendment. Any interference with those rights would therefore have to meet strict scrutiny, and the Court held that Alabama did not meet the standard. Alabama’s stated reason for wanting the list was to see if the NAACP was conducting business in violation of other Alabama statutes. The NAACP complied to a large extent, such as disclosing leaders and their activities, but refused to give up all of its rank and file members. The Court did not see the relation between the government’s goal and revealing rank and file members, so Alabama failed to meet strict scrutiny.
The Court is willing to allow for disclosures in the context of campaign finance. In Buckley v. Valeo, the Court upheld a provision of a campaign finance law which required that records of names and addresses of anyone donating over $10 be made available to the public. Acknowledging that there still was a privacy interest in association, the Court still however held that the public interest in knowing who was financing elections outweighed this. If identities were not disclosed, there would be no practical way to find out who was violating election donation limits. The Court did take care to mention that it could possibly see disclosures of smaller parties creating a chilling effect, though no such parties were part of this case.
The Court again emphasized its position on campaign finance disclosure recently, in McCutcheon v. Federal Election Committee. Disclosure of donations does put some burden on speech, but at the same time, it does not create any sort of ceiling or limit on the speech. Combined with the governmental and public interest it serves in exposing any corruption, disclosure of direct donations is constitutionally valid.
|NAACP v. Patterson (1958)
|Laws forbidding discrimination have frequently been attacked by individuals claiming that the right of association allows one to discriminate and exclude certain people from their group. One seminal decision on this topic is Roberts v. United States Jaycees. Decided in 1984, the lawsuit involved a fraternal organization of young men known as the Jaycees challenging the Minnesota Human Rights Act. The Act prohibited discrimination based on race and sex, and the Jaycees argued that the right of association protected their ability to exclude women from their club.
The Court affirmed that the freedom of association was a fundamental right, and that forcing a group to accept members it does not desire is an intrusion on that right. Still, the Court upheld the law, finding that the state’s interest in stopping discrimination was compelling, and that the restriction was unrelated to suppressing any message. The Court did not see how allowing women would undermine any expressive message of the Jaycee’s. While the Court may have allowed discrimination in smaller and more personal “intimate association” under the 14th amendment, the size of the Jaycee’s excluded them from being considered for that as well.
The Court upheld anti-discrimination laws in several other suits following Jaycees when those groups were of similar size and nature (including rotary clubs and clubs with over 400 members). Despite this, the Court has acknowledged certain instances where the right to associate will protect discrimination. Intimate association – small, personal gatherings – are protected. Additionally, if discrimination is in fact the very message or expressive purpose behind the association, it is protected.
The message exception was affirmed in the decision Boy Scouts of America v. Dale in 2000. A Boy Scouts’ scoutmaster was expelled from the Scouts after publicly announcing his homosexuality and he sued under New Jersey’s public accommodations law which prohibited discrimination. The Court ruled in favor of the Boy Scouts, holding that the forced association of a gay scoutmaster within the organization violates the Scouts right to freedom of expressive association. The Court held that a group gets deference from the Court in regards to what its expressive message is, as well as what will interfere with that message. In this case, the Boy Scouts claimed they were anti-gay, and that having a gay scoutmaster would undermine and ruin this group expression. The decision was decided 5-4, with the 4 dissenting judges arguing against the Scout’s determination of their message: sexuality having been expressly not mentioned or discussed in any Scout literature or rules.
|Roberts v. United States Jaycees (1984)