Right/Freedom of Association/Limitations - Restrictions

Freedom of Association

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? 🖉 edit

The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.

Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of 1917 (and its 1918 amendments) and the Immigration Act of 1918, and the Justice Department’s infamous Palmer Raids in 1920” (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War

Under American jurisprudence, what permissible exceptions exist? 🖉 edit

The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020) . These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020) . For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020) . In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association.

Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’ s New York ex rel. Bryant v. Zimmerman and 1951’ s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951) . In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists.

Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020) . Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’ s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971) .

These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity.

Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976) . Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020) .

Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992) .

What are the typical exceptions or limitations placed on this right? 🖉 edit

Restricting certain groupings and gatherings that are involved, or likely involved in crimes as was seen with the response to the formation of the Ku Klux Klan as a vigilante association, is a typical exception to the right of freedom of association (Australian Law Reform Commission 2016) . In response to the crimes committed by the organization, Congress passed a Force Act in 1870 and the Ku Klux Klan Act in 1871, which authorized the suppression of disturbances to the peace by force (Gruberg). This was in effort to stop terrorist organizations through heavy punishments, such as the suspension of habeas corpus under these acts. These acts were eventually found by the Supreme Court to be unconstitutional and were repealed; however, although direct restrictions upon the group (who was behind the 1963 bombing of a black church in Alabama, numerous murders including that of three civil rights workers in 1964 Mississippi, and other criminal efforts to impose white supremacy on the masses and restrict the rights of African Americans) and its freedom of assembly and association have not been able to lawfully prevent such crimes in the name of violations of the freedom of association, modern civil rights laws and increased national surveillance by the Federal Bureau of Investigation have indirectly impacted the KKK’s and other criminally-involved groups’ (such as terrorist groups like ISIL) freedoms of association and assembly. The First Amendment of the US Constitution grants the right to “peaceable assembly,” and any indication of unpeaceable assembly warrants government interference. When also the association infringes upon another group’s freedoms of association, endangers public safety and order, or does not benefit/or harms social need, as can be seen with the efforts of the KKK to restrict black Americans rights to vote and peaceably assemble, necessary limitations are placed upon the right.

In terms of certain limitations on peaceable assembly, the government has the right to limit this freedom based upon “time, place and manner” restrictions: “Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity (O'Neill). These restrictions come in many forms including imposing limits on the noise level of speech, capping the number of protesters who may occupy a given forum, barring early-morning or late-evening demonstrations, and restricting the size or placement of signs on government property. ” These limits ultimately regard the facilitation of legitimate regulatory goals, such as preventing traffic congestion or preventing interference with nearby activities.

Religious rights often conflict with the right to free association. As observed in Christian Legal Society v. Martinez, where a Christian student organization argued their First Amendment right to prohibit non-christians from their group, religious associations have used their rights to religious freedom to restrict certain individuals from associating with them. Though, as the Supreme Court ultimately ruled against the Christian Legal Society, rights to free association were ultimately upheld over contradicting religious rights.

A similar issued was observed in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group. Though, in this case, the Supreme Court asserted the right of groups to prohibit membership from individuals whose beliefs do not coincide with the group mission.Furthermore, Hurley exhibited how religious rights can counter rights to free association, as the decision emphasized that certain individuals could be blocked from associating with religious groups on the basis of their identity.

Rights to public safety additionally contradict rights to free association. This is often the argument made when prosecuting individuals associating with criminal and terrorist groups. For example in City of Chicago v. Morales, the Supreme Court upheld a Chicago law which criminalized public gang association, asserting that gang members had no constitutional rights to free association (Cole). Exhibited by the court’s decision, individuals are not constitutionally protected to align with criminal groups, as the public’s right to safety against such groups weighs against personal rights to association.

In regards to the right to free political association, parties hold a contradicting First Amendment right to limit party membership. Furthermore, while a candidate can identify as associating with a specific political party on a ballot, that party has the ability to disassociate from them (Legal Information Institute, Cornell Law School). Through this, a candidate often cannot freely affiliate with the party they associate with, exhibiting a contradiction to the right to free association.

Under international human rights laws, what permissible exceptions (often called derogations) exist? 🖉 edit

In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966) . Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969) .

Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).

Have political theorists or philosophers discussed the permissibility of exceptions to this right? 🖉 edit

Freedom of association is an essential facet of modern democracy, yet it is often overlooked in political discourse on the natural rights and liberties of the citizen. This could be due to the fact that freedom of association and assembly are often so closely related to freedoms of speech and expression, or it could be because it is so difficult for political theorists to decide which association should be allowed and which can be justifiably restricted. Whatever the case, the debate over exceptions to the right of free association continues to change and evolve even in the modern era.

John Locke is one of the earliest proponents of natural right theory; his second “Treatise on Government” famously outlines humankind’s three essential rights to life, liberty, and property (Locke, “Treatise on Government”). He does not specifically mention people’s freedom of association, but scholars point to his writings on religious assembly as an indication of his stance on the right. In a George Mason University publication, Eric Claeys refers to a passage from Locke’s “Letter Concerning Toleration,” which states that a church is simply a “free and voluntary society” (Locke, “A Letter Concerning Toleration”), saying that “if one reads the same passage from the Letter with an eye toward issues about associational freedom, Locke is making a far more radical point: All private societies, churches and otherwise, deserve a presumption of associational freedom” (Claeys, “The Private Society and the Liberal Public Good in John Locke’s Thought”). In light of Claeys’ assessment, it is easy to observe Locke’s thoughts on the freedom of association in the constitution that he wrote for the Carolina Colony in 1669. For example, Article 103 of this document states that “no person whatsoever shall speak anything in their religious assembly irreverently or seditiously of the government or governors, or of state matters” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669” ). This reveals a reluctance on Locke’s part to allow any association of citizens to gather in opposition of the established government, perhaps because he understands the potential threat that this could pose to political society. His position on the freedom of association is made all the more clear in his 108th Article, which stipulates that “assemblies, upon what presence soever of religion, not observing and performing the above said rules, shall not be esteemed as churches, but unlawful meetings, and be punished as other riots” (Locke, “The Fundamental Constitutions of Carolina: March 1, 1669” ). The “above said rules” to which Locke refers consist mostly of provisions to ensure free membership and movement between various religious establishments, but the classification of non compliant assemblies as “unlawful” or “riots” implies a Locke’s hesitation to allow totally free and unrestricted assembly.

Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “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 grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.

French diplomat Alexis De Tocqueville traveled to the United States in the early 1800s in order to observe the country, and in 1835 he published his findings in his first volume of Democracy in America. In this work the Frenchman sung praise for the American system of government, applauding it for spreading liberty and freedom within its borders. However, even de Tocqueville understood the danger inherent in the guarantee of totally unrestrained freedom of association. Linking the freedom of association to such constitutional rights as the freedom of petition and freedom of the press, he writes that “it cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity” (De Tocqueville, Democracy in America). De Tocqueville goes on to explain that American association is generally peaceful because citizens tend only to use it to oppose political groups, but he nevertheless must address the danger inherent in the guarantee of unrestricted freedom of association. Even in what he sees as a most ideal form of government, the Frenchman recognizes the risks inherent in unrestricted freedom when it comes to assembly and association.

Decades later, John Stuart Mill came to a similar conclusion in his 1859 work, On Liberty. Mill was familiar with the American system of government, as evidenced by his mentions of American religious toleration and prohibition of “fermented” drinks, so it is possible that his thinking was influenced in some way by Madison’s work on the Constitution (Mill, “On Liberty”). In his work, Mill advances the theory that humans band together solely for the purpose of protection, and that therefore we can never have the authority to restrain others’ liberty. However, he notes that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, “On Liberty”). Later on, he explicitly asserts that “freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived” (Mill, “On Liberty”). Clearly, Mill is aware of the dangers implicit in the creation of total freedom of assembly, and he agrees with the Constitutional Convention that this important right can permissibly be subject to certain regulations and limitations.

The political and philosophical debate over freedom and association and its acceptable limitations evolved dramatically in the United States in the late nineteenth and early twentieth centuries. Writing just over a century after Mill, First Amendment scholar Thomas Emerson produced an article entitled “Freedom of Association and Freedom of Expression,” in which he addresses a number of issues relating to freedom of association by assessing court precedents and the lessons of history. Like the documents from Mill and Madison, Emerson’s article holds that complete freedom of association would be detrimental to society. Using the example of an organization whose sole aim is to perpetrate a successful bank robbery, Emerson points out that “some types of association need, and are entitled to, greater protection than others” (Emerson, “Freedom of Association and Freedom of Expression,”). He goes on to state that “the legal doctrine that protects associational rights must be able to distinguish between them and to afford the required measure of protection in each case” (Emerson, “Freedom of Association and Freedom of Expression”). Taking into account twentieth-century court decisions, Emerson explains that “the Supreme Court, in recognizing an independent "right of association," has undertaken to give that right constitutional protection primarily through application of a balancing test” (Emerson, “Freedom of Association and Freedom of Expression”).

This balancing test is incredibly important in determining the constitutionality of certain restrictions on citizens’ association because it must avoid violating citizens’ unequivocal right to free expression while still preventing the perpetration of unlawful action (Emerson, “Freedom of Association and Freedom of Expression,”). The case of NAACP v. Alabama is one case in which the Supreme Court attempted to find this balance. This instance in which the NAACP argued that the state of Alabama could not constitutionally require the organization to disclose a list of its members, proved incredibly important to our modern understanding of the right to association. Writing the majority opinion, Justice John Marshall Harlan II explained that “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” (Franklin, “NAACP v. Alabama”). This differed from other contemporary cases, such as New York ex. rel Bryant v. Zimmerman, in which the Supreme Court had ruled in favor of the state’s ability to restrict association related to the Ku Klux Klan. The difference, Harlan explained, was that unlike the KKK, the NAACP did not present a threat to society. For this reason, the organization and the members involved were protected under the First Amendment’s protection of citizens’ freedom to peaceably assemble (Franklin, “NAACP v. Alabama”). Harlan, like Madison, Locke, and Mill, understood the importance of restricting free association in order to preserve the peace in society.

The right to free association is famously difficult to address because the general consensus is that association should not be completely free. For that reason, political theorists and philosophers have gone to great lengths over the centuries to define exactly when and why free association should be limited or left alone. The general consensus is that assembly and association are detrimental to society when they lead to violence or unrest, but as with other rights it is difficult for theorists to decide exactly what criteria turn a given gathering from an expression of free assembly into a potential threat to civil society.

“John Locke, Two Treatises ( 1689) - Online Library of Liberty,” accessed June 19, 2020, https://oll.libertyfund.org/pages/john-locke-two-treatises- 1689.

Locke, John, “A Letter Concerning Toleration,” trans. William Pope, 1689, accessed at https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/locke/toleration.pdf, 9.

Eric R. Claeys, “The Private Society and the Liberal Public Good in John Locke's Thought,” SSRN Electronic Journal, 2007, https://doi.org/10. 2139/ ssrn.1027965.

“Constitution of the United States of America,” Bill of Rights Institute, October 3, 2019, https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE. 5

“Right to Peaceful Assembly” (Law Library of Congress, 2014) , https://www.loc.gov/law/help/peaceful-assembly/right-to-peaceful-assembly.pdf.

John Stuart Mill, “Mill, ‘On Liberty,’” in The Routledge Philosophy Guidebook to Mill: On Liberty, ed. Jonathan Reiley (New York, NY: Routledge, 1998) , 45.

Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” The Yale Law Journal 74, no. 1 ( 1964) : p. 1, https://doi.org/10. 2307/ 794804

Is this right often perceived as threatening to government authorities? 🖉 edit

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/

Is this right at times curtailed by private actors? 🖉 edit

Philosophers and political theorists generally agree that it is sometimes necessary to curtail free association, but this agreement does not answer questions of which forms assembly and association can permissibly be restricted, how they should be limited, or who should control their regulation. It often falls to the government to decide when to step in during times of popular uprising or violent protest, but history also shows a number of instances in which private actors have curtailed citizens’ right to free association or assembly.

The most common way for private actors can curtail free association is by prohibiting assembly and demonstration on their privately-owned property. In U.S. law, there exists a precedent that protects citizens’ right to free association on public property precisely because the right is not guaranteed when it is practiced on private property. This doctrine was first introduced in 1936, when Jersey City mayor Frank Hague issued an ordinance prohibiting members of the Committee for Industrial Organization (CIO) from gathering in a public space and distributing “communist” literature (Garcia, “Hague v. Committee for Industrial Organization,”). The CIO, with the help of the American Civil Liberties Union, successfully argued that the New Jersey ordinance was unconstitutional under the First Amendment. Hague appealed to the Supreme Court, which upheld the original decision and struck the ordinance down (Garcia, “Hague v. Committee for Industrial Organization,”). Justice Owen Roberts justified the decision for Hague v. Committee for Industrial Organization by likening public spaces such as streets and parks to public forums, in which the free flow of ideas and discourse must be protected under the First Amendment. He made this ruling because he recognized that private actors retained the right to curtail citizens’ right to association when that association occurred on private property. In order to preserve the right to peaceable assembly, the Court’s decision set the precedent for the “public forum” doctrine, which continues to protect the right to association in public spaces to this day (Garcia, “Hague v. Committee for Industrial Organization,”). Writing for The First Amendment Encyclopedia, David Hudson writes that “in the Court’s forum-based approach, the government can impose reasonable time, place, and manner restrictions on speech in all three categories of property, but has limited ability to impose content-based restrictions on traditional or designated public forums” (Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,”). The doctrine specifically aims to protect peaceful association on public property because the right is not guaranteed when assembly occurs on private property.

One example of a private actor using its ownership of property to curtail free association can be observed in the 1994 case of Madsen v. Women’s Health Center, Inc. In this case, the Aware Woman Center for Choice in Melbourne, Florida filed a suit against anti-abortion protestors who had been blocking entrances to the building, harrassing abortion patients, and demonstrating outside of staff members’ homes (“Madsen v. Women's Health Center, Inc.”). A court order was issued, ordering protestors to refrain from trespassing on Center property, blocking its entrances, and abusing staff and patients. When the court order was violated, the “the court created a 36-foot buffer zone around the clinic entrances and driveways (including the public sidewalk) within which all antiabortion speech was banned. It also prohibited excessive noise and images that patients could see or hear during surgery and recovery” (“Madsen v. Women's Health Center, Inc.”). The Supreme Court later upheld the buffer zone rules, but struck down the prohibition of protestors’ practice of showing images to clients. It also ruled that the Florida court’s 300-foot buffer zone that prohibited protestors from approaching clients and staff at the Center and at their homes was too restrictive of First Amendment rights (“Madsen v. Women's Health Center, Inc.”). The ruling, according to Chief Justice Rhenquist, sought to preserve protestors’ right to association and assembly while still protecting the patients and clients from intimidation and abuse (“Madsen v. Women's Health Center, Inc.”). It also serves as a reminder that private citizens still reserve the right to curtail free association if said association makes them feel unsafe or threatened.

Both the Madsen and Hague cases illustrate that judges, in particular, have immense power to determine the breadth of citizens’ right to freedom of association as guaranteed in the First Amendment. For example, in the case of Ward v. Rock Against Racism, the Supreme Court determined that free expression in the form of a rock concert in New York’s Central Park could be subject to volume regulations under the First Amendment (O'Neill, “Time, Place and Manner Restrictions”). This decision, written by Justice Anthony Kennedy, led to the creation of a test to determine whether assembly and expression could be restricted. The test asks whether the regulation is “content neutral,” whether it is “narrowly tailored” to fit a specific governmental interest, and whether it still provides ample opportunity for the message to be communicated (O'Neill, “Time, Place and Manner Restrictions”). If a regulation passes all three prongs of this test, then it can legally restrict or control the time, place, or manner in which assemblies like protests are carried out. The Law Library of Congress writes that since Kennedy’s decision, “the Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance” (“Right to Peaceful Assembly: United States - Law Library of Congress”). Kennedy’s ruling also allows the government to “make special regulations that impose additional requirements for assemblies that take place near major public events” (“Right to Peaceful Assembly: United States - Law Library of Congress”). This legal doctrine has significantly shaped the way in which state and federal governments treat freedom of association and the right to peaceable assembly. While the Supreme Court can hardly be considered a private actor, Justices like Kennedy rely on personal study and private experience to create policy that affects American freedom of association as a whole. Citizens within a political society have the right to free association as long as it is peaceable and does not infringe upon others’ rights or liberties. This principle lends itself to a number of complexities because its parameters for free association are so vague, but over the past few centuries the United States has worked to define when and how private actors can curtail others’ right to free association. The result is that the Supreme Court, and the justices that make it up, have set out precedents that test whether certain forms of association are constitutional and which ones can justifiably be restricted. The definition of public spaces as areas of free association and creation of buffer zones for private properties represent significant steps forward in this effort.

References:

Lynne Chandler Garcia, “Hague v. Committee for Industrial Organization,” Hague v. Committee for Industrial Organization, accessed June 16, 2020, https://mtsu.edu/first-amendment/article/619/hague-v-committee-for-industrial-organization.

David L Hudson, “Public Forum Doctrine - The First Amendment Encyclopedia,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/824/public-forum-doctrine.

“Madsen v. Women's Health Center, Inc. - The First ...,” accessed June 19, 2020, https://mtsu.edu/first-amendment/article/10/madsen-v-women-s-health-center-inc.

Kevin Francis O'Neill, “Time, Place and Manner Restrictions,” Time, Place and Manner Restrictions, accessed June 17, 2020, https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

“Right to Peaceful Assembly: United States - Law Library of Congress,” accessed June 19, 2020, https://www.loc.gov/law/help/peaceful-assembly/us.php.