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The first instance of the freedom of association in the Vanuatuan Constitution is in the first edition after independence in 1980 asserts in Chapter 2 Part 1 in article 5 sub article h that all individuals are entitled to freedom of assembly and association without discrimination.
REPUBLIC OF VANUATU. 1980. “CONSTITUTION of the REPUBLIC of VANUATU.” https://parliament.gov.vu/images/pdf/constitution.pdf. +
There are multiple constitutions and iterations of the Venezuelan constitution and the first instance of freedom of association is the 1961 constitution which indicated in article 70 that everyone has the right to associate for lawful purposes, in accordance with the law.
Bolivarian Republic of Venezuela. 1961. “Constitución de Venezuela, 1961 Con Reformas de 1983.” Pdba.georgetown.edu. 1961. https://pdba.georgetown.edu/Constitutions/Venezuela/ven1961.html. +
The first instance of the freedom of association in Vietnam is the 1946 constitution of the Democratic Republic of Vietnam, in Article 10 which states in translation; Vietnamese citizens have the right to: Freedom of organization and meeting, among other rights. Upon reunification of the North and South of Vietnam the 1992 Constitution indicated in article 69 that citizens are entitled to freedom of speech … assembly, association and demonstration in accordance with the law.
“Hiến Pháp 1946 Việt Nam Dân Chủ Cộng Hòa.” 1946. Thuvienphapluat.vn. 1946. https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Hien-phap-1946-Viet-Nam-Dan-Chu-Cong-Hoa-36134.aspx?v=d. Socialist Republic of Vietnam. 1992. “1992 CONSTITUTION of the SOCIALIST REPUBLIC of VIETNAM (as Amended 25 December 2001).” Http://Www.vietnamlaws.com/Freelaws/Constitution92%28aa01%29.Pdf/. 1992. https://web.archive.org/web/20081016121441/http://www.vietnamlaws.com/freelaws/Constitution92%28aa01%29.pdf/. +
First instance of the right to association is the 39th Article in the 1991 constitution which stated: ‘Citizens all over the Republic may, in a manner that does not contravene the provisions of this constitution, associate politically, professionally, and in trade unions.‘ Further guaranteeing this right in the article stating the various types of associations permitted.
LL.M., Prof. Dr. Axel Tschentscher,. 1991. “Yemen Constitution.” Www.servat.unibe.ch. ICL. May 16, 1991. http://www.servat.unibe.ch/icl/ym00000_.html. +
Zambia states in its constitution of 1991 that every person in Zambia has the right to: freedom of conscience, expression, assembly, movement and association according to article 11 as part of fundamental rights. President and Parliament of Zimbabwe. 1991. “Zambia 1991 (Rev. 2009) Constitution - Constitute.” Www.constituteproject.org. 1991. https://www.constituteproject.org/constitution/Zambia_2009?lang=en. +
Zimbabwe first highlights the right of association in section 21. Protection of freedom of assembly and association of the 1980 constitution after independence from the United Kingdom.
Zimbabwe. 1980. “CONSTITUTION of ZIMBABWE.” AceProject. 1980. https://aceproject.org/ero-en/regions/africa/ZW/Constitution%20of%20Zimbabwe%201980.pdf. +
This right became an element of political discourse in the late Enlightenment, especially in the mid and late [[Probable year:: 1800]]s , as seen in the works of authors such as John Stuart Mill and Leo XIII.
References:
Catholic Church. Pope (1878-1903 : Leo XIII). Rerum Novarum : Enciclica Di Leone XIII Sulla Questione Operaia. Lugano :Edizione a cura dell'Organizzazione cristano-sociale del canton Ticino per la celebrazione del LXX, 1961.
Mill, J. S. (1975) Three essays : On liberty, Representative government, The subjection of women. London: Oxford University Press. +
Freedom of association, as it is defined today, largely originates from the works of various political theorists. Early recognition of this freedom, however, can be found before and after the lifetimes of John Locke, Jeremy Bentham, and John Stuart Mill. Following the enactment of a constitution in 1815, the newly-independent Kingdom of the Netherlands took concrete steps to codify freedom of expression, which took this form following revisions in 1848 and 1983:
“The right of association shall be recognized. This right may be restricted by Act of Parliament in the interest of public order" (Article 8).
The early Dutch interest in protecting free association arguably stemmed from their war of independence against Spain, and the decentralized form of republican governance that followed. This phenomenon is evidenced by the Union of Utrecht (1579) and the Act of Abjuration (1581). While neither document explicitly mentions the right to free association, they establish the necessary framework for its eventual adoption into the Dutch Constitution.
The Union of Utrecht was enacted prior to a formal declaration of independence from Spain, and would eventually influence the U.S. Articles of Confederation (for better or worse). It declared that the provinces and cities of the United Netherlands are entitled to “special and particular privileges,” as well as the freedom to maintain regional “franchises” and “long practiced customs.” This language primarily served as an acknowledgement of the differing factions and organizations that existed within and beyond Holland, and the efforts by William of Orange and other Dutch revolutionaries to garner a larger base of support. Regarding religion (an issue largely forced upon them by the Spanish Inquisition), the document protected individuals from being “investigated or persecuted because of [their] religion,” and allowed for religious ordinances to be established on a regional basis so they could be “most fitting for the repose and welfare” of different communities. In protecting religious freedom, the Union of Utrecht implicitly acknowledged the right to join religious organizations, which amounted to an intersection between the issues of religion and association.
The Act of Abjuration represented a definitive declaration of independence from Spain, which came to fruition following the Eighty Years’ War. The authors of this document asserted that royal subjects, when confronted with a tyrannical ruler, may collectively “proceed to the choice of another prince for their defense.” They admonished Habsburg Spain, which operated “under the mask of religion” to suppress associations in Holland that dissented against Catholicism or Spanish political rule. As the discontented subjects of a monarch can reasonably be termed as an association with shared interests, this document would theoretically assert their right to collective action. The Act of Abjuration sought to identify and protect the interests of Dutch society as a whole, while asserting that smaller associations within this broader collective were entitled to the political power previously wrested from them by Spain.
Neither the Act of Abjuration nor the Union of Utrecht explicitly mentioned the right to free association. The eventual adoption of this right in the Constitution of the Kingdom of the Netherlands in 1848, however, affirmed an ideological movement promoting free association that began in earnest during the Dutch revolution against Habsburg Spain. This experience undoubtedly shaped the Constitution of 1815, which currently recognizes free association as an enumerated right.
Pope Leo XIII forcefully argued for free association in Section 51 of Rerum novarum ([[Probable year:: 1891]]) , an extremely influential text in Catholic thought: "Private societies, then, although they exist within the body politic, and are severally part of the commonwealth, cannot nevertheless be absolutely, and as such, prohibited by public authority. For, to enter into a "society" of this kind is the natural right of man; and the State has for its office to protect natural rights, not to destroy them."
References:
“Act of Abjuration 1581, Dutch Declaration of Independence.” n.d. Www.age-of-The-Sage.org. https://www.age-of-the-sage.org/history/dutch_independence_1581.html.
“Union of Utrecht 1579.” n.d. Www.constitution.org. https://www.constitution.org/1-Constitution/cons/dutch/Union_Utrecht_1579.html.
“Recht Tot Vereniging.” 2021. Gert-Jan Leenknegt, Nederland Rechtsstaat. November 1, 2021. https://www.nederlandrechtsstaat.nl/grondwet/inleiding-bij-hoofdstuk-1-grondrechten/artikel-8-recht-tot-vereniging/.
Netherlands 1814 (Rev. 2008). n.d. Constitute. Comparative Constitutions Project. Accessed August 1, 2024. https://www.constituteproject.org/constitution/Netherlands_2008.
Catholic Church. Pope (1878-1903 : Leo XIII). Rerum Novarum : Enciclica Di Leone XIII Sulla Questione Operaia. Lugano :Edizione a cura dell'Organizzazione cristano-sociale del canton Ticino per la celebrazione del LXX, 1961.
John Locke’s “A Letter Concerning Toleration” (1689) primarily concerns religious associations, but he extends certain arguments to associations in general. The text in the next paragraph is Boyd’s summarization (241), where sections in quotes come directly from “A Letter.” As Boyd notes, though Locke defends policies that allow freer association, he does so because of their practical benefits, not because it is a fundamental right. (Boyd, 241)
"'Suppose this Business of Religion were let alone,' Locke hypothesizes, 'and that there were some other Distinction made between men and men, upon account of their different Complexions, Shapes, and Features.' Under conditions of differential treatment, such persons, 'united together by one common persecution,' would become just as dangerous and disruptive. Conversely, if the state eliminated special privileges, on the one hand, or disproportionate burdens, on the other, then supposedly intractable religious or ethnic affiliations would become matters of complete indifference, no more or less contentious than other private decisions about how to spend one’s money, manage one’s estates, or marry off one’s daughter." (Boyd, 241)
Though Enlightenment commentators like Locke argued for and against greater freedom to associate. However, the first to mention it as an absolute right was John Stuart Mill, who argues in On Liberty that “from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; 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” (1859, 16).
References:
Boyd, Richard. “THE MADISONIAN PARADOX OF FREEDOM OF ASSOCIATION.” Social philosophy & policy 25, no. 2 (2008): 235–262.
Mill, John Stuart. On Liberty. Oxford World Classics +
Yes. It is protected explicitly in documents such as the Universal Declaration of Human Rights, the European Convention on Human Rights, and the American Convention on Human Rights.
Specifically, free association is upheld by Article 11 of the European Convention on Human Rights, which claims, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”Additionally, it is enshrined in Article 20 of the Universal Declaration of Human Rights, which claims “ Everyone has the right to freedom of peaceful assembly and association; No one may be compelled to belong to an association.” In Article 22 of the International Covenant on Civil and Political Rights, the rights to association are specifically outlined, as it upholds “In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Lastly, The International Labor Organization similarly supports freedom of association in the 1998 Declaration on Fundamental Principles and Rights at Work, which asserts that all members have “freedom of association and the effective recognition of the right to collective bargaining;” +
Constitutions written after [[Probable year:: 1900]] very often protect free association.
As the right to free association is upheld by numerous United Nations treaties, for example, the European Convention on Human Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, it would be expected that most countries maintain legal provisions protecting it. Though, investigated by UN Special Rapporteur Maina Kiai, many countries enforce legislation that explicitly restricts civilians’ entitlements to free association (International Center for Not-for-Profit Law).
For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act [[Probable year:: 2012]] bans individuals under the age of twenty one from organizing public demonstrations. Additionally, stipulated by the same act, children under the age of fifteen cannot participate in demonstrations. Article 33 of the Constitution of Mexico, Kiai asserts, prohibits foreigners from engaging with Mexican politics. Similarly, Kiai notes that in Myanmar, Article 354 prohibits foreigners from assembling. Through these various forms of legislation, political and social association are highly restricted, as individuals are prohibited from expressing their associations through protest and civic engagement.
Additionally, Kiai presents how legal restrictions on sexual orientation limit free association in several countries. For example, in Russia, a ban on gay pride parades was upheld by Moscow’s city council in [[Probable year:: 2012]]. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in [[Probable year:: 2014]], prohibting gay marriage and the ability to “participate in or support gay clubs, societies, organizations, processions or meeting.” Kiai notes a similar anti-homosexuality law was signed by Uganda’s president in [[Probable year:: 2014]]. Demonstrated by these numerous legal restrictions to homosexuality, free association is unprotected in numerous countries, as one can often be punished for associating with a specific sexual orientation.
In the remainder of his report, Kiai continues to elaborate on numerous legal provisions that restrict free association. For example, Kiai notes how both Chile and Turkey utilize counter-terrorism legislation to restrict free association. Similarly, he explains how criminal laws in Vietnam and El Salvador often deter individuals from exercising their rights to free association, as their voices may be met with harsh penalties from their governments.
Witnessed through Kiai’s reporting, the restrictions to free association are plentiful. This ultimately demonstrates that despite its entitlement by numerous United Nations treaties, the right to free association is highly vulnerable to violation and not widely internationally upheld.
No.
The right to free association is not explicitly stated in the United States Constitution. Though, The Supreme Court has historically upheld the constitutional right to free association, invoking the Fourteenth and First Amendments (Legal Information Institute, Cornell Law School). In 1958, The NAACP v. Patterson ruling established this precedent. In response to Alabama’s aims to limit the NAACP’s business within the state, the Supreme Court ruled that it was “the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment” (Oyez). Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment (Oyez), which asserts no individual may be “"deprived of life, liberty or property without due process of law.” The court additionally demonstrated the First Amendment to protect free association, Justice Harlan claiming “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.” Thus, while the right to free association is not explicitly described by the Constitution, as witnessed in NAACP v. Patterson, it is upheld by American constitutional law.
References:
Cornell Law School, Legal Information Institute, “First Amendment”: https://www.law.cornell.edu/wex/first_amendment +
Yes. As seen in Roberts v. US Jaycees, the right may be weighed against other state interests, especially when the association in question is neither expressive nor intimate. In that case, free association rights were curtailed to ensure adherence to non-discrimination laws.
Additionally, a significant exception to free association rights in the United States is witnessed through legislation regarding political parties. For example, in New York State Board of Elections vs. Lopez Torres, the court claimed,
A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the state gives a party a role in the election process...Then for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment Demonstrated by New York State Board of Elections vs. Lopez Torres, if a party associates with discriminatory or racist behavior, it cannot be involved in the state’s election process, demonstrating a limitation on free political association.
Additionally, sections of the Federal Election Campaign Act are often interpreted to be exceptions to free association, as they require the public disclosure of individuals’ political donations. This position was echoed by the Buckley v. Valeo ruling, where the Supreme Court argued that new campaign finance laws, “impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” Thus, witnessed by Buckley v. Valeo, campaign finance laws may be interpreted as an exception to free association, as one cannot privately financially contribute to the political party they associate with.
Within universities, freedom of association, specifically the right to associate as an exclusive religious group, may be regulated by anti-discrimination clauses. This was observed in Christian Legal Society v. Martinez, where the court ruled in favor of Hastings’ College of Law’s anti-discrimintation policies, which prohibited Christian student group’s from excluding non-christians. Therefore, on university campuses, individuals must be able join any student group, regardless of their religious association. Ultimately, this decision restricted the parameters of free association, as one cannot actively discriminate on the basis of it.
Consequently, decided by Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, certain groups can legally exclude individuals from associating with them. Furthermore, if an individual’s beliefs do not coincide with the group’s mission, the individual may be prohibited from membership. Specifically, the court claimed that by mandating the Boston Veterans’ Council to include Gay, Lesbian, and Bisexual individuals in their parade, the Massachusetts State Court, “violates the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Thus, while still restricting free association, the ruling counters Christian Legal Society v. Martinez, as individuals can be restricted from associating with certain groups if it is deemed that their identity does not conform to the group’s platform.
Ultimately, these exceptions arise from the implicit nature of the freedom of association within the Constitution, as what qualifies as “association” is highly subject to interpretation by Supreme Court justices. For this reason, depending on who is sitting on the bench, freedom of association can be left unchecked or potentially be highly restricted.
References:
Buckley v. Valeo, 424 U.S. 1 (1976)
Christian Legal Society v. Martinez, 561 U.S. 661 (2010),
Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995),
New York State Board of Elections v. Lopez Torres, 552 U.S. 196 (2008)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Since the 1950s and 60s, SCOTUS has, to an extent, ruled that the speech and assembly rights imply a right to associate, especially for politically expressive purposes. For example, it ruled in NAACP v. Alabama that the NAACP cannot be forced to submit a membership roster to a state government. In 2000, in Boy Scouts v. Dale, the court held that the Boy Scouts could exclude gay members (in violation of state non-dsicrimination laws) because not being able to do so would undermine their ability to express a viewpoint - expressive association.
In Roberts v. US Jaycees, an organization for young business leaders’ ban on female members was challenged because it violated state non-discrimination law. This case is notable because the court identified a new form of association: intimate association. The opinion of the court states that “certain intimate human relationships be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” The opinion places this right under the general aims of the First Amendment. The court ruled against the organization, but in so doing, it established the idea that Americans have the right to free intimate and expressive association. Still, one could argue that in a state with true freedom to associate, any group of people would be able to enact whatever membership restrictions it wanted, regardless of whether or not it falls into the categories of “expressive” or “intimate.”
Although assembly is the First-Amendment freedom that most seems to correspond with association, SCOTUS has not derived free association this way. Rather, it uses a more nebulous combination of various First-Amendment rights. As the majority held in NAACP v. Button, “It is not necessary to 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.”
References:
Boy Scouts of America v. Dale, 530 U. S. 640
NAACP v. Alabama, 357 U. S. 449
NAACP v. Button, 371 U.S. 415 (1963)
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
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 [[Probable year:: 2016]]) . In response to the crimes committed by the organization, Congress passed a Force Act in [[Probable year:: 1870]] and the Ku Klux Klan Act in [[Probable year:: 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 [[Probable year:: 1963]] bombing of a black church in Alabama, numerous murders including that of three civil rights workers in [[Probable year:: 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.
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 [[Probable year:: 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 [[Probable year:: 1953]], 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights [[Probable year:: 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 [[Probable year:: 1998]], 172). +
The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson [[Probable year:: 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 [[Probable year:: 1950]]s and [[Probable year:: 1960]]s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute [[Probable year:: 2020]]) . For example, in [[Probable year:: 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 [[Probable year:: 2020]]) . In response to Brown v. Board of Education [[Probable year:: 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 [[Probable year:: 1928]]’ s New York ex rel. Bryant v. Zimmerman and [[Probable year:: 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 [[Probable year:: 1928]], [[Probable year:: 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 [[Probable year:: 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 [[Probable year:: 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 [[Probable year:: 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 [[Probable year:: 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 [[Probable year:: 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 [[Probable year:: 1976]]) . Later, in the Roberts v. United States Jaycees court case of [[Probable year:: 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 [[Probable year:: 2020]]) .
Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander [[Probable year:: 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 [[Probable year:: 1992]]) .
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 [[Probable year:: 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, [[Probable year:: 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, [[Probable year:: 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 [[Probable year:: 1800]]s in order to observe the country, and in [[Probable year:: 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 [[Probable year:: 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 ([[Probable year:: 1689]]) - Online Library of Liberty,” accessed June 19, [[Probable year:: 2020]], https://oll.libertyfund.org/pages/john-locke-two-treatises-[[Probable year:: 1689]].
Locke, John, “A Letter Concerning Toleration,” trans. William Pope, [[Probable year:: 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, [[Probable year:: 2007]], https://doi.org/10.[[Probable year:: 2139]]/ ssrn.1027965.
“Constitution of the United States of America,” Bill of Rights Institute, October 3, [[Probable year:: 2019]], https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE. 5
“Right to Peaceful Assembly” (Law Library of Congress, [[Probable year:: 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, [[Probable year:: 1998]]) , 45.
Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” The Yale Law Journal 74, no. 1 ([[Probable year:: 1964]]) : p. 1, https://doi.org/10.[[Probable year:: 2307]]/ 794804
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.
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 [[Probable year:: 1917]] (and its [[Probable year:: 1918]] amendments) and the Immigration Act of [[Probable year:: 1918]], and the Justice Department’s infamous Palmer Raids in [[Probable year:: 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 +