Freedom of Association/Threatening to government
Is this right often perceived as threatening to government authorities?
Freedom of association is a valuable right that encompasses the relationships, organizations, and environments in which a public can manifest other freedoms, such as expression, speech, and assembly. As Tom Kahn, a civil rights activist stated, “Freedom of expression without freedom of association is the right to speak freely in the wilderness” (qtd. in Democracy Web). As such, this freedom grants people power and influence in the government and society around them. In both democratic and authoritarian regimes, government authorities have a variety of reasons why they might restrict freedom of association, including being threatened by the right.
Freedom of association is not solely limited to political associations; it encompasses intimate associations - such as familial, romantic, and other personal relations - as well as collective associations which are any group of people that associate for a common purpose (Brownlee, Kimberly, and Jenkins, 2019). The level that a government is threatened by freedom of association depends on the nature of the government, the purpose and goals of the association, the resources of the association, and other environmental factors. Intimate associations can be regulated for a variety of possible reasons, including social engineering, paternalism, and moralism, though these could be considered more proactive (to promote an agenda) rather than reactive (to a perceived threat) (Alexander, 2008, 16-19). Collective associations, on the other hand, can threaten government authorities especially when the goals or beliefs of the association diverge from those of the ruling elite. Lambda, an LGBTQ+ organization in Mozambique, has been denied official registration with the state on the grounds that such organizations “are contrary to the moral, social, and economic order of the country and offend the rights of others or the public good” (qtd. in Amnesty International, 2024, 8). Even though the Constitutional Council of Mozambique declared this clause - which is found in Mozambique’s Law on Associations - as unconstitutional, Lambda was still denied legal recognition “as of November 2023, even though they fulfilled all substantive and formal requirements outlined in the Law No. 8/91, which governs the right of association” (Amnesty International, 2024, 8).
As Larry Alexander stated in the Cambridge University Press, “One of the most common bases for association and non-association has been that of beliefs. Those who share certain beliefs associate with one another in order to discuss, strengthen, and promote such shared beliefs” (Alexander, 2008, 6). If these beliefs do not align with those of the state, the state may seek to regulate freedom of association so as to not spread the opposing beliefs further. This is especially relevant for authoritarian regimes that are known to repress dissenting ideologies. The 2023 individual country scores of the Freedom of Association Index (FAI) correlate with those of the Democracy Index (DI), with countries that scored high on the DI also scored high on the FAI, and those that scored lower on the DIx scored lower on the FAI. China, one of the lowest-scoring states for example, scored a 2.1 (on a scale of 0-10 with 10 the most democratic) on the DI and a .04 (on a scale of 0-1 with 1 the most free) on the FAI. Conversely, Denmark, a more democratic country (with a DI score of 9.3) scored a .93 on the FAI (Our World in Data). It is reasonable to conclude that authoritarian regimes consider the right to associate as threatening to their control over the state and the public.
The presence of a public sphere, “a realm of our social life in which something approaching public opinion can be formed” is only possible with the guarantee of freedom of assembly and association (Habermas, 1964, 49). The way in which authoritarian regimes operate, “in general, [marshaling] decision making power into an individual or family, the military, or at the highest ranks of a powerful organization such as a party-state,” cause public association and therefore the possibility of widespread difference to put the control of the regime in danger, leading to more extreme restrictions on the ability to associate (Hasmath, 2023, 4). The public sphere is powerful, and authoritarian states take care to prevent association in the public sphere from threatening their power. However, Hasmath proceeded to argue that the public sphere can be effective and present in authoritarian regimes when associations operate tactically to circumvent government repression. Regimes that rely on the strict adherence to national identity often find cultural, ethnic, and religious associations (formal and informal, political and nonpolitical) that differ from that promoted by the state as threatening. In the Xinjiang region of China, the state represses cultural gatherings among the Uyghur Muslim population “to prevent what they perceive as the threat of terroristic activities” (Brownlee, Kimberly, and Jenkins, 2019). The US Department of State additionally reported that,
“Labor laws in China do not allow for freedom of association, which is a core labor standard. Independent unions are illegal in China and employers are under no obligation to bargain with workers in good faith…In the Xinjiang Uyghur Autonomous Region, state-sponsored forced labor remains a significant part of the CCP’s campaign of repression against Uyghurs and members of other Muslim minority groups.”
While the right to association is often more frequently perceived as threatening to authoritarian regimes and with higher perceived consequences, it has throughout history been seen in democratic states as threatening as well. In the United States “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” (Cornell Law School). The United States government during the Red Scare was notorious for going after individuals with alleged associations with the Communist Party, enacting legislation that would regulate association in the name of protecting democracy. However, the 1951 US Supreme Court case of Dennis v. United States concurred “that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a ‘clear and present danger’ that threatened the government” (Oyez). The case decision maintained that it would be constitutional for the United States to restrict association if it was perceived as a clear and present danger. This decision was not overturned in the 1969 Brandenburg v. Ohio case, even though Dennis upheld its accordant restriction to free association and Brandenburg overturned its accordant restriction. In Brandenburg, the Court noted that the role of “the courts in applying the clear and present danger test were simply to determine whether, on balance, the ‘gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’ In fact, in Brandenburg, the Court cited Dennis as good law,” though scholars are still divided on whether the Brandenburg and Dennis decisions are in conflict and whether Brandenburg de facto discounted Dennis (Walker, 2009).
Unless there is a clear and present danger, the government must respect citizens’ right to associate freely as decided in the 1958 National Association for the Advancement of Colored People (NAACP) v. Alabama Supreme Court case. It was decided that the state of Alabama “obtaining the names of the Association's membership would likely interfere with the free association of its members, so the state's interest in obtaining the records was superseded by the constitutional rights of the petitioners” (Oyez). It should be noted that the fact that Alabama sought to regulate freedom of association by compelling the NAACP to release its membership list in the first place points to it perceiving the right as a threat. John Patterson, the attorney who filed the original lawsuit against the NAACP, “claimed that the organization had harmed the citizens of Alabama by promoting, among other things, the Montgomery Bus Boycott and the admission of Autherine Lucy to the University of Alabama. Patterson believed that the resulting negative publicity that accompanied these events in the national media had damaged the state's reputation” causing the need to disclose members’ identities (Brown, 2008).
References:
Alexander, Larry. 2008. “What is Freedom of Association, and What is its Denial?” Social Philosophy and Policy, 25 no. 2. Cambridge University Press. https://doi.org/10.1017/S0265052508080163
Amnesty International. 2024. “Violations of rights to freedom of expression, association and assembly based on sexual orientation, gender identity and/or expression: Submission to the UN Independent Expert on sexual orientation and gender identity.” https://www.amnesty.org/en/documents/ior40/7655/2024/en/
Brown, Steven. 2008. “NAACP v. Alabama.” Encyclopedia of Alabama. Updated 2024. https://encyclopediaofalabama.org/article/naacp-v-alabama/
Brownlee, Kimberly, and David Jenkins. 2019. “Freedom of Association.” The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/freedom-association/
Cornell Law School. N.d. “Amdt1.8.1: Overview of Freedom of Association.” Legal Information Institute. Accessed June 14, 2024. https://www.law.cornell.edu/constitution-conan/amendment-1/overview-of-freedom-of-association
Democracy Web. n.d. “Freedom of Association: Essential Principles.” Accessed June 14, 2024. https://www.democracyweb.org/node/84
Emerson, Thomas. 1964. “Freedom of Association and Freedom of Expression.” The Yale Law Journal 74, no. 1. https://doi.org/10.2307/794804
Habermas, Jurgen, Sara Lennox, and Frank Lennox. 1974. “The Public Sphere: An Encyclopedia Article (1964).” New German Critique, no. 3, pp. 49-55. https://doi.org/10.2307/487737
Hasmath, Reza. 2023. “Discourse, Deliberation and Difference in an Authoritarian Public Sphere.” Journal of Deliberative Democracy, 18 no. 2. https://doi.org/10.16997/jdd.1182
Our World in Data. 2023. “Democracy Index, 2023.” https://ourworldindata.org/grapher/democracy-index-eiu
Our World in Data. 2023. “Freedom of Association Index, 2023.” https://ourworldindata.org/grapher/freedom-of-association-index
Oyez. n.d. “Dennis v. United States.” Accessed June 14, 2024. https://www.oyez.org/cases/1940-1955/341us494
Oyez. n.d. “National Association for the Advancement of Colored People v. Alabama ex rel. Patterson.” Accessed June 14, 2024. https://www.oyez.org/cases/1957/91
US Department of State. n.d. “China’s Disregard for Human Rights.” Accessed June 17, 2024. https://2017-2021.state.gov/chinas-disregard-for-human-rights/
Walker, James. 2009. “Brandenburg v. Ohio (1969).” Free Speech Center at Middle Tennessee State University. https://firstamendment.mtsu.edu/article/brandenburg-v-ohio/