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In Roberts v. US Jaycees, the Supreme Court noted that US jurisprudence has created two constitutionally protected categories of association: expressive (e.g. interest groups and political parties) and intimate (e.g. friends and family). There is little originalism present in key expressive-association rulings. NAACP v. Alabama ([[Probable year:: 1959]]) , the first case where the Supreme Court held that a right to expressive association exists, did not draw on originalism. There is also little originalism present in the intimate-association jurisprudence, though it has been influenced by long-standing common-law ideas.
The Supreme court established the idea of intimate association in Roberts, holding that it “has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.” The majority opinion cites Meyers v. Nebraska ([[Probable year:: 1923]]) , a case that helped establish a right to make individual educational choices. The opinion cites old ideas going beyond education, stating that the Fourteenth Amendment guarantees a right to “marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Though it does not embrace originalism, the ruling does invoke historical common-law understandings that may have existed when the Constitution was written.
As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders explicitly chose not to include free association in the Bill of Rights. James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. Boyd writes that Madison viewed association as a “second-order” right (Boyd [[Probable year:: 2008]], 258), whose existence is tolerable because institutions can mitigate its worst effects (247). The following passage from “Federalist No. 10” illustrates his attitude toward factions arising from free association:
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
Boyd suggests several possible reasons why Madison may not have enumerated the right to associate. It is possible that he saw it as implied by other First-Amendment rights, such as free assembly. It also may have been seen as less important or vulnerable than other rights, and Madison may have seen it as the type of auxiliary right protected by the Ninth Amendment. Finally, the right’s exclusion may have been because the founders were too skeptical of it for its inclusion (258).
Despite modern views of assembly as related to association, at the time of America’s founding, it would have been better understood as related to the right to petition. According to Congress’s online annotated Constitution, the assembly clause meant that the people have a right to assemble in order to petition the government. The site says that assembly was initially seen as a “subordinate and instrumental” right. The state constitutions mentioned in my original piece on freedom of association should be interpreted the same way. In fact, this is even more clear in these state constitutions than in the national one. The state constitutions surround the right to assemble with expressly political language, such as the right to petition and advocacy for the “common good,” while the First Amendment’s guarantees are political, but not entirely political (it protects religion, and protected speech and press are often, but not always, political).
The opinion in NAACP v. Alabama derives freedom of expressive association from a combination of speech, assembly, and the Fourteenth Amendment, not merely freedom of assembly. It states that, “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. 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, which embraces freedom of speech.”
References:
NAACP v. Alabama: https://www.law.cornell.edu/supremecourt/text/357/449
Meyer v. Nebraska: https://www.law.cornell.edu/supremecourt/text/262/390
Richard Boyd, “The Madisonian Paradox of Freedom of Association”:
https://www.cambridge.org/core/journals/social-philosophy-and-policy/article/madisonian-parad
ox-of-freedom-of-association/ABDB2F9951FD811C0AC84F76327EBACC
List of key expressive association rulings:
https://mtsu.edu/first-amendment/encyclopedia/case/142/expressive-association
Congress Annotated Constitution: (“Freedom of Assembly and Petition”)https://constitution.congress.gov/browse/essay/amdt1_4_1/#:~:text=First%20Amendm ent%3A,for%20a%20redress%20of%20grievances.
Various schools of Chinese Philosophy contribute to society’s understanding of the right to free association.
Legalism, with its adherence to strict punishments for any violation of the law, limits the liberty of citizens to freely associate. At its core, Legalism restricts the ability of citizens to act freely, as under the philosophy individual’s lives become entirely controlled by administrative acts (MacCormack, 62). Furthermore, the legalist state was not concerned with the liberties of civilians. Rather, legalists focused their efforts towards strengthening the economic and military strength of the state through authoritarian power (MacCormack, 63). Thus, in the school of Legalism, there is little tolerance for associations that counter the laws of the state, undermining the right to free association.
Consequently, Confucianism emphasizes the ability of citizens to rebel against the emperor (Peek, 523). This bolsters the right to free association, as individuals are encouraged to join other political parties in the face of an unjust regime.
Though, more similarly to Legalism, additional elements of Confucianism vastly undermine the right to free association. As Confucianism evolved, the belief system began to emphasize a strict code of ethics, creating a rigid social structure (Peek, 532). This limited the ability of followers to freely associate, as they were confined to following a strict code of behavior. Thus, while Confucianism initially appears to support the right to free association, its development as a belief system has constricted the liberties of followers.
While Taoism does not discredit the right to free association, it does weaken the importance of associations as a whole. Advocating that individuals put aside their distinguishing characteristics, Taoism stresses that there “is one underlying and uniting all phenomena” among human beings (Chan, 316). Furthermore, Taoists argue that human beings must transcend their personal distinctions, diminishing the value of individuals’ associations. Thus, while Taoism does not proclaim individuals should not be able to associate themselves with certain groups, it does argue that associations are ultimately meaningless.
References:
Wing-Tsit Chan, "19. Neo-Taoism" In A Source Book in Chinese Philosophy edited by Chan, 314-335. Princeton: Princeton University Press, 1963. https://doi.org/10.1515/9781400820030-025
MacCormack, Geoffrey. “The Legalist School and Its Influence upon Traditional Chinese Law.” ARSP: Archiv Für Rechts- Und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 92, no. 1 (2006): 59–81. http://www.jstor.org/stable/23681616.
Peek, John M. “Buddhism, Human Rights and the Japanese State.” Human Rights Quarterly 17, no. 3 (1995): 527–40. http://www.jstor.org/stable/762392.
Aristotle, in his book Nicomachean Ethics, wrote that “Friendships are also important parts of our childhood and adult experience. Without them, we struggle to discover, shape, and pursue our ideas of what constitutes a good life. But, again, friendships can take many forms for many reasons, not all of which are grounded in mutual affection and convivial warmth” (Brownlee and Jenkins 2019). Friendships here form the basis of our associations in life; he ultimately argues that we as humans require association and assembly in our lives.
Aristotle argues that not all forms of association are political, particularly those that stem from material needs, including family, the market, and alliances for mutual defense/benefit- these can be organized into libertarian and capitalist principles.
According to one’s needs, individuals are free to associate and disassociate within their own means of persuasion and trade, and none of this is political- or in other words, the government should have no business with the private associations of the people (Johnson 32, 2001). Regarding politically, he further argues that “It is not the case . . . that people come together for the sake of life alone, but rather for the sake of living well” (3.9.1280a31) and “the political community must be set down as existing for the sake of noble deeds and not merely for living together” (Johnson 32, 2001). He takes a stance against the dominance of individuals associating merely for political protection and gain, but he believed that the state should do more in its concern for the citizen, encouraging virtue and discouraging harm and vice (Johnson 32, 2001). He argues that the best political regime best delivers the “good life-” production and distribution of goods, both goods of the body and of the soul. Within this theory, Aristotle considers the production and distribution of bodily goods as private and the production and distribution of spiritual goods as public: “The primary goods of the soul are (1) moral and intellectual virtue, which are best produced by public education, and (2) honor, the public recognition of virtue, talent, and service rendered to the city. The principle of distributive justice is defined” (Johnson 38-39, 2001). Aristotle’s theory about freedom of association is that political associations’ ultimate goal is to help foster the virtues that are necessary in the pursuit of justice and happiness; therefore, “no legitimate regime can be indifferent to the virtue of the citizens” (Johnson 44, 2001). The polis is both the most inclusive and authoritative community according to Aristotle, seeing as Aristotle's polis is a mixed concept, fusing the political state with civil societal attributes “including economic, religious, and other forms of association” (Miller 878, 1996).
References:
Kimberley Brownlee and David Jenkins, Stanford Encyclopedia of Philosophy, “Freedom of Association”: https://plato.stanford.edu/entries/freedom-association/
Gregory R. Johnson, “The First Founding Father: Aristotle on Freedom and Popular Government,” 2001: https://www.hoover.org/sites/default/files/uploads/documents/0817929223_29.pdf
Miller, Fred D. “Aristotle and the Origins of Natural Rights.” The Review of Metaphysics 49, no. 4 (1996): 873–907. http://www.jstor.org/stable/20129946.
Bentham approached freedom of association as he did free expression: as a means of political advocacy and dissent. In Chapter IV Section 24 of A Fragment on Government, he advocates for “the liberty of public association; or the security with which malecontents may communicate their sentiments, concert their plans, and practise every mode of opposition short of actual revolt, before the executive power can be legally justified in disturbing them.”
References:
A Fragment on Government: https://en.wikisource.org/wiki/A_fragment_on_government/Chapter_4 +
The Five Precepts of Buddhism condemn activity relating to “sexual misconduct, falsehoods, and intoxicants” (Peek,529), possibly limiting the ability of individuals to associate with certain behaviors or activities. While Buddhism does warn against disobeying the Five Precepts, as this may result in bad Karma, it ultimately asserts that it is the choice of the individual to decide whether or not they wish to follow the declarations of the Five Precepts (Peek, 529). Furthermore, Buddhism’s focus on moral authority, in which the individual is not subordinate to the Five Precepts, can be interpreted as allowing individuals freedom in regards to association. Demonstrated by this, although Buddhism provides guidelines for what followers ought to avoid associating with, these are merely suggestions. Thus, emphasizing the freedom of the individual, Buddhism can be seen to support the right to free association.
Though, the traditions of Buddhist monks reveal how certain Buddhist practices restrict freedom of association. As explained by Holmes Welch, “According to the Buddha’s rule, when people become monks and nuns they lead a collective life. Not only is there no private property, but there is no thought for oneself. To take thought for oneself is to keep hold of the ego” (Welch, 146). Noted by Welch, upon entering monastic life, Buddhists are expected to relinquish all previously held associations. Therefore, observed through the expectations of monks, elements of Buddhism confine free association.
Looking to Buddhist leaders, freedom of association is ultimately upheld. For example, in a 1993 Washington address, the Dalai Lama demonstrated his admiration for the principles of democracy, particularly the liberties, such as freedom of association, it guarantees to civilians. The Dalai Lama asserts, “Irrespective of whether we are rich or poor, educated or uneducated, belonging to one nation or another, to one religion or another, adhering to this ideology or that, each of us is just a human being like everyone else.” Through his words of acceptance, the Dalai Lama conveys that Tibetan Buddhism supports the ability to freely associate with many identities. Thus, while the Five Precepts and monastic codes appear to restrict the liberties of followers, the Dalai Lama’s words affirm them.
References:
Dalai Lama, “Buddhism and Democracy,” Washington DC, 1993: https://www.dalailama.com/messages/buddhism/buddhism-and-democracy
Peek, John M. “Buddhism, Human Rights and the Japanese State.” Human Rights Quarterly 17, no. 3 (1995): 527–40. http://www.jstor.org/stable/762392.
Welch, Holmes. “The Reinterpretation of Chinese Buddhism,” The China Quarterly, 1952
Harriet Taylor, a feminist philosopher from the 19th century, wrote about the restrictions that limit women to the private sphere. Men, according to Taylor, decided that the private and domestic sphere is women’s “proper sphere”; however, she argues that any group’s proper sphere is the “largest and highest which they are able to attain to” (Taylor). Taylor argues that this is not possible without complete liberty and, if men are convinced of their mental superiority, should not be an issue if women and men are afforded the same opportunities (Taylor). This argument can be adapted to freedom of association because it essentially concludes that both women and men have the equal opportunity to associate with organizations if he or she can prove his or her worth.
In the Constitution, there are two interpreted freedom of associations. The First Amendment includes the freedom of expressive association. The Fourteenth Amendment includes the freedom of intimate association. Intimate association is an individual’s right to form/maintain close personal relationships without interference from the government (Hudson, [[Probable year:: 2009]]) . Expressive association, recognized in NAACP v. Alabama ([[Probable year:: 1958]]) , refers to the right of individuals to congregate or association for expressive purposes, such as advancing a political opinion (Hudson, [[Probable year:: 2009]]) . In Roberts v. United States Jaycees ([[Probable year:: 1984]]) , Justice Brennan wrote the majority opinion. Brennan concluded that the Jaycees could not exclude women from membership because their purpose as an economic organization for the advancement of young men was not jeopardized if women were members (Bernstein, [[Probable year:: 2009]]) . Justice O’Connor concurred, but distinguished between expressive and non-expressive groups, which exist for other purposes (Bernstein, [[Probable year:: 2009]]) . O’Connor concluded that the Jaycees primarily existed for economic reasons, not expressive ones, and, as such, could not exclude women on the basis that it would compromise their mission (Bernstein, [[Probable year:: 2009]]) .
Hobbes distinguishes between public political networks, or bodies politic, which are authorized by the commonwealth (states and provinces, for example), and private associations (251). Hobbes is not particularly skeptical of small, private organizations made for harmless, known purposes. However, he distrusts larger organizations with nefarious or unknown intentions. He states that, “Irregular Systemes, are those which having no Representative, consist only in concourse of People; which if not forbidden by the Common-wealth, nor made on evill designe, (such as are conflux of People to markets, or shews, or any other harmelesse end,) are Lawfull. But when the Intention is evill, or (if the number be considerable) unknown, they are Unlawfull” (252). Regarding bodies politic, Hobbes argues that their representation must be limited and determined by the commonwealth, since the commonwealth’s ultimate authority cannot be supplanted (252).
Hobbes identifies groups that we would today call private political associations: groups formed “not by obligation of one to another, but proceeding onely from a similitude of wills and inclinations” (265). He distrusts these groups, arguing that they are “for the most part unnecessary, and savour of unlawfull designe; and are for that cause Unlawfull, and go commonly by the name of factions, or Conspiracies” (265).
References:
Hobbes, Leviathan +
It is natural for people within society to surround themselves with people who are like-minded and develop associations based on these commonalities that allow them to pursue experiences that they believe will benefit them. It is this natural grouping that provides the framework for the freedom of association that society values because of its ability to connect people on another level without the government regulating the practices and the function of the group. Immanuel Kant believed that individuals should be allowed to pursue their own life experiences and find joy in the things that they do, paving the way for allowing a sort of freedom of expression within his version of society. Throughout his various works, Kant describes the conditions for allowing freedom of association, despite being cautious of the effects of allowing multiple associations within society.
The freedom of association does not come without limitations within Kant’s political theory of the state. Kant claimed that, “The state thus does not have the right to arrange the inner constitution and church affairs according to its own view of what seems advantageous and to prescribe or command the faith and rituals of worship (ritus) (for this must be left entirely to the teachers and chairmen that the people has chosen), but, rather, the state has only the negative right to keep the influence of the public [religious] teachers away from the visible, political commonwealth, which could be detrimental to public peace; hence the state has the right in internal conflicts or conflicts among the various churches not to allow civil harmony to be endangered, which is thus a right of the police” (Kant [[Probable year:: 2006]], 125). It is his introduction of an inner constitution that implies that there is a freedom of association based on voluntary terms. Outside of the simple definition of a church as an institution with extreme influence based on a belief in a higher authority, religion can be seen as an association since people with the same beliefs come together due to their commonalities in the things they believe. Due to this, Kant believes that there is a freedom of associations that may come together, yet they are still subjected to the public laws and the civil constitution established by the state. Kant also notes that the government is still obligated to allow the association to do as they please, but they cannot develop social laws and norms that the people must follow according to the law. All involvement in external affairs outside the state are simply joined on a voluntary basis since Kant’s focus was on the enjoyment one could derive from their life experiences, even if it meant joining another institution. Furthermore, Kant noted that “A third kind of right is necessary for the preservation of the state-the right of inspection (ius inspectionis). This requires that no association which could influence the public welfare of society (publicum), such as an association of political or religious illuminati, may be kept secret; at the request of the police, it must not refuse to disclose its constitution. But only in cases of emergency may the police search anyone's private residence, and in each case, they must be authorized to do so by a higher authority” (Kant [[Probable year:: 2006]], 123). Despite the freedom of association noted before, it does not mean that such associations are free from any sort of government intervention. Kant allows such government involvement when the state believes that the institution in question can pose a threat to the commonwealth and the rule of law. Kant claims that the state can only impose negative liberties on these associations since, as noted before, they have their own inner constitutions that allow them any sort of positive liberties outside the ones given to all by the government. In addition, these institutions must be public to allow the state to monitor its affairs to again make sure that it does not interfere with the government laws or the welfare of the community. The idea of freedom of association is still a strong pillar within Kant’s vision of society and like the people consenting to the government rule, these associations must be consented to by the people who choose to associate themselves with it.
The state’s involvement in public affairs whether they are a part of the association is necessary for the preservation of the individuals within society that allows them to follow their own life path. Due to this sentiment, Kant wrote that “In the case of a crime on the part of a subject that makes any association with him a danger for the state, the ruler has the right of banishment (that is, deportation) to a province in a foreign country where he will not enjoy any of the rights of a citizen” (Kant [[Probable year:: 2006]], 134). Kant’s main concern is the well-being of the rest of society outside the association and the ways that the association will affect those outside and around the association in question. Therefore, the state has the obligation to monitor the associations and interfere when the rights of others are violated, putting the civil constitution above any inner constitutions. This contributes to Kant’s purpose of the government, which is to consent to the social contract in exchange for protection of rights from the government against others. The state must take responsibility for the rights and liberties that individuals have even if it means involving themselves in the lives of the people to protect them. In addition, when discussing the history of humankind, Kant claimed that “At the level of culture at which the human race still stands, therefore, war is an indispensable means of bringing about progress in culture. And only after culture has been perfected (only God knows when this would be) would a lasting peace be salutary for us and only through such culture would it become possible. We are thus, as concerns this point, most likely ourselves to blame for the ills about which we so loudly complain. And the holy scripture is completely right to portray an amalgamation of peoples into a single society and their complete liberation from external threats as a hindrance, since their culture had but hardly begun, to all further culture, and as a descent into incurable corruption” (Kant [[Probable year:: 2006]], 35). Although Kant’s approves of the freedom of association, he remains skeptical about what allowing these groups to come together means for the rest of society and for the state. He acknowledges that these communities form to create their own culture and remains skeptical because he recognizes that without plurality or too much plurality within society, problems arise. Specifically, he claims that with associations there is always a risk of corruption since people are trying to spread their lifestyle to others, imposing on others’ freedoms and liberties to do as they please. Kant wants to make sure that there is a freedom to associate, but with this right is the necessity for it to stay public and for the government to involve itself in the matters of the community to make sure that the possibility of corruption does not become a reality. Regardless of this possibility, Kant does believe that society can create associations that will not affect the individuals outside of the group and therefore allows for association among the people.
Despite allowing freedom of association within society, Kant sees the dangers behind it and the way that the group can affect the whole society. His main concern is the corruption that could be a result of the groups that will change the way that people enjoy the liberties that the government has been tasked with to protect. Due to the belief in pursuits for personal satisfaction, Kant believes that this includes pursuing associations that satisfy the individual so long as it adheres to the standards set by the government and if it does not interfere with the interests individuals outside of the association. Most of Kant’s examples pertain to the obvious religious associations within society but also reference the unions, family, political parties, corporations, and other civil society associations, all of which change the way that society functions and the way individuals choose to live their lives. Kant believes in the freedom of association with the belief that the government and the overall well-being of society should transcend the needs and the beliefs set forth by the associations.
References:
Kant, Immanuel, Pauline. Kleingeld, Jeremy. Waldron, Michael W. Doyle, and Allen W. Wood. Toward Perpetual Peace and Other Writings on Politics, Peace, and History. New Haven: Yale University Press, [[Probable year:: 2006]].
Freedom of Association/Philosophical Origins/Tradition contributions/Lockean Thought/English Empiricism +
Locke made little mention of free expression. However, one can draw inferences based on his views on religion and association, especially since there is substantial overlap between expression and association and religion. One can infer that, if Locke advocates for certain doctrinal limitations on churches and other associations, he would support limits on the expression of those doctrines. After all, forming associations that exist to further certain viewpoints is a form of expression (take the concept of “expressive association” in US jurisprudence). In A Letter, Locke establishes some respect for freedom of opinion, writing that if an opinion does “not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated” (36). Scholars disagree strongly over the extent to which speech would be regulated in a Lockean society (Daniel 2013, 1).
References:
Daniel, Alex, "Speech Locked Up: John Locke, Liberalism and the Regulation of Speech" (2013). Student Works. 154.
https://scholarship.shu.edu/student_scholarship/154
Locke, John. “A Letter on Toleration” +
One central idea of Marx’s theory is the free association of producers. That is, workers are able to freely determine what associations and organizations they can form to contribute to the economy (Fetscher, [[Probable year:: 1973]], 459). Though this is not what one would conventionally describe as free association - which usually refers more to civic and political groups - it is an interesting contribution to the study of free association.
In Volume One of Capital, Marx states the following:
“The lifeprocess of society, which is based on the process of material production, does not strip off its mystical veil until it is treated as production by freely associated men, and is consciously regulated by them in accordance with a settled plan. This, however, demands for society a certain material groundwork or set of conditions of existence which in their turn are the spontaneous product of a long and painful process of development” ([[Probable year:: 1867]]) .
References:
Fetscher, Irving “Karl Marx on Human Nature,” Social Research Fall 1973; 40, 3; Periodicals Archive Online
Marx 1867: https://web.stanford.edu/~davies/Symbsys100-Spring0708/Marx-Commodity-Fetishism.pdf +
While Bentham’s free association is a political right, in On Liberty, Mill advocates for near-universal free association: “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” (Mill [[Probable year:: 1859]], 16). In his introduction, Mill makes clear that his ideas of liberty come from utilitarianism, not natural rights, stating that, “I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of a man as a progressive being” (14).
References:
On Liberty: https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf Schofield: https://core.ac.uk/download/pdf/1896809.pdf +
As mentioned above (section 1), John Locke’s 1689 “Letter Concerning Toleration” is widely believed to be the first written source to address, albeit indirectly, the right to freedom of association. While it is true that no source written prior to 1689 specifically explores the right in its entirety, there were a number of Reformation-era thinkers whose work formed the basis for Locke’s belief in the benefits of granting the right to free religious association. These sources were primarily English, written by such philosophers as Richard Hooker and Thomas More, though there is some evidence that Locke drew on themes from John Calvin as well. Among Locke’s most prominent sources of inspiration and guidance is Richard Hooker’s influential work, The Laws of Ecclesiastical Polity. This book, much of which was published posthumously in the late 1590s, was Hooker’s attempt to defend the fledgeling Anglican Church against attacks from the growing population of English Puritans. It explores a number of religious topics, one of which is the concept that all Churches, including those of “Rome, Corinth, Ephesus, England, and so the rest...are public Christian societies. And of such properties common unto all societies Christian, it may not be denied, that one of the very chiefest is Ecclesiastical Polity” (Hooker, 178). This idea that religious groups could be considered a “society” of people is advanced in Locke’s “Letter,” which takes the work one step further by examining one’s freedom to belong to these various religious societies. Hooker also explores this idea to some extent when he writes that “we rather incline to think it a just and reasonable cause for any Church, the state whereof is free and independent if in these things it differ from other Churches, only for that it doth not judge it so fit and expedient to be framed therein by the pattern of their example, as to be otherwise framed than they” (Hooker, 275).
In this passage Hooker essentially argues that different sects of Christianity ought to be allowed to practice their preferred faith in peace, provided they similarly respect other branches’ rights to believe and associate. Perhaps is not a surprising statement to find in a defense of the Anglican Church after it broke away from Catholicism, but Hooker’s conviction that “Churches are rather in this case like divers families than like divers servants of one family” nevertheless seems to have profoundly influenced Locke’s work in the same area (Hooker, 277).
In addition to this conceptual framework, Locke also seems to draw on Hooker for an interpretation of John Calvin’s teaching. Hooker’s Fourth Book of Laws quotes Calvin, who supposedly writes that, “Yea, sometime it profiteth and is expedient that there be difference, lest men should think that religion is tied to outward ceremonies. Always provided that there be not any emulation, nor that Churches delighted with novelty affect to have that which others have not.” (Hooker, 276). This, Hooker says, provides a basis of acceptability for different religious sects to profess their religions differently. By arguing in favor of different churches practicing differently, Hooker also implies a support for citizens’ right to belong to various churches according to how they wish to worship. It is possible that Hooker was referring to Calvin’s statement in The Institutes of the Christian Religion, which says that that “it is a well-known doctrine, and one as to which all the pious are agreed,—that the right consideration of signs does not lie merely in the outward ceremonies, but depends chiefly on the promise and the spiritual mysteries, to typify which the ceremonies themselves are appointed.” (Calvin, Institutes of the Christian Religion, Book IV, Chapter 16, 2). Calvin’s work then proceeds to explain the parallels between circumcision in the Jewish faith and Baptism in the Christian ones, before concluding that “Baptism has been substituted for circumcision (Calvin, Institutes of the Christian Religion, Book IV, Chapter 16, 4). While this does not mean that Calvin believed in one’s right to belong to the association or religion of one’s choice, its influence on Hooker’s statement is apparent. In concert with Hooker and a number of other influences, Calvin’s philosophy guided Locke in his exploration of religious freedom and, by extension, freedom of association.
Locke’s “Letter” also displays some degree of influence from the writings of Thomas More, another Reformation-era thinker whose work addresses the citizen’s role in various religious associations. More’s famous work, Utopia, tells of a fictional country in which society is ordered and governed according to the way that More believed was best. Included in these guidelines are the principles of religious freedom, which likely had some influence on Locke’s thoughts on free association. Sanford Kessler’s “Religious Freedom in More’s ‘Utopia’” notes that “Locke's work contains arguments that are remarkably similar to More’s,” and explains that “In Utopia, religious freedom checked the threat of religious conflict by transforming a plethora of squabbling sects into tolerant, stable supporters of the government” (Kessler, “Religious Freedom”). The actual text of More’s work states that the founder of the mythical society in Utopia had “left matters open, making each person to follow his own beliefs,” (More, 110). While this does more to imply More’s support for religious freedom than for freedom of association, the idea that citizens should be able to belong to whichever religion they choose is certainly evident in Locke’s work on toleration.
Freedom of association was not directly addressed prior to Locke’s work on toleration, but it is clear that Reformation-era philosophers influenced his work. Hooker’s thoughts on religious freedom and the relationship between religious societies shaped the way that Locke thought about religious toleration, and ideas from Calvin and More also influenced his work.
References:
Calvin, Jean, and Henry Beveridge. Institutes of the Christian Religion. Christian Classics Ethereal Library,1845, http://www.ntslibrary.com/PDF%20Books/Calvin%20Institutes%20of%20Christian%20 Religion.pdf, www.ccel.org/ccel/calvin/institutes.html.
Hooker, Richard. Laws of Ecclesiastical Polity. George Routledge and Sons, 1998, https://prydain.files.wordpress.com/2012/06/the_laws_of_ecclesiastical_polity_books_i-i V.pdf.
Kessler, Sanford. “Religious Freedom in Thomas More's ‘Utopia.’” The Review of Politics, vol. 64, no. 2, 2002, pp. 207–229. JSTOR, www.jstor.org/stable/1408764. Accessed 8 July 2020.
More, Thomas. Utopia. Translated by Dominic Baker-Smith, Penguin Classics, 20012.
Rousseau’s political philosophy is generally based on his assessment of familial association and its effect on human society. Most of his works describe the family as the basic form of human interaction, the creation of which is one of the first steps that the “savage man” takes toward civilization. His work does not deal with the right to freedom of association as it exists in modern political discourse, but it does reveal a support for mankind’s tendency to gather into groups with which to live, work, and prosper.
Association itself is key to Rousseau’s political philosophy because in his mind it is a building block for political society. In The Social Contract he writes that humans come together to form communities by surrendering certain “natural” rights and liberties in favor of certain “civil” rights and liberties, such as the protection of private property or the adherence to general ideals of justice. “The problem,” he says, “is to find a form of association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before.” (43). While the “association” of which Rousseau writes here does not resemble the right to association that most modern states protect in one way or another, the author’s thoughts on this kind of community-building clearly influence his views on the creation of social associations within the broader community. In his “Discourse on Political Economy” Rousseau writes that
Every political society is composed of other smaller societies of different kinds, each of which has its interests and its rules of conduct: but those societies which everybody perceives, because they have an external and authorised form, are not the only ones that actually exist in the State: all individuals who are united by a common interest compose as many others, either transitory or permanent, whose influence is none the less real because it is less apparent, and the proper observation of whose various relations is the true knowledge of public morals and manners. The influence of all these tacit or formal associations causes, by the influence of their will, as many different modifications of the public will. (“Discourse on Political Economy,” 211)
In this passage the modern conception of political association is more easily identified. He seems to view the formation of these “smaller societies” which exist within the State and influence the public will as more or less inevitable, though he does not express any disapproval of their existence.
Rousseau expands upon these views in his discussion of the social “circles” within Genevan political society, which he describes in his “Letter to Monsieur D’Alembert on the Theater” as the Genevan equivalent of social clubs in England. Again, he points out that the formation of these circles is a natural consequence of communal association, and points out that they do not pose any great danger to the State. “Of all the kinds of relations which can bring individuals together in a city like our own,” he believes that “the circles form incontestably the most reasonable, the most decent, and the least·dangerous ones, because they neither wish nor are able to be hidden, because they are public and permitted, because order and rule prevail in them” (“Letter to Monsieur D’Alembert, 108). These “circles” serve more of a social purpose than a political one, and Rousseau notes that they could potentially have negative consequences by encouraging men to drink too much or women to gossip in excess. He believes that they can influence the general will that governs an ideal community, but these associations do not form with specific political goals in mind. Having weighed the costs and benefits that they bring, Rousseau recommends that the Genevan state should “preserve the circles, even with their faults. For these faults are not in the circles but in the men who compose them; and there is no imaginable form of social life in which the same faults do not produce more harmful effects.” (“Letter to Monsieur D’Alembert,” 110). While his advocacy for the circles’ preservation does not directly indicate Rousseau’s support for freedom of association, his work at least shows an unwillingness to restrict people’s access to associational interaction within political society.
References:
Rousseau, Jean-Jacques. The Collected Writings of Jean-Jacques Rousseau. Translated by Allan Bloom, Publ. for Dartmouth College by Univ. Press of New England, [[Probable year:: 2004]], ia800705.us.archive.org/34/items/RousseauLetterToDAlembertPoliticsTheArtsAllanBloo m_20[[Probable year:: 1811]]/ Rousseau%20-%20%27%27Letter%20to%20D%27Alembert%27%27%3B% 20Politics%20%26%20the%20Arts%20%5BAllan%20Bloom%5D.pdf.
Rousseau, Jean-Jacques, and G. D. H. Cole. The Social Contract; and Discourses. Dent, [[Probable year:: 1963]], Online Library of Liberty,
oll-resources.s3.amazonaws.com/titles/638/Rousseau_0132_EBk_v6.0.pdf.
The transcendentalist movement started in the 1800s and centers itself around the individuality of mankind and the ways that they adhere to their moral standards. This sense of individuality advocated for was challenged by the growing associations and the inevitable developments of the era in which the world continuously relied on one another. Alongside the freedom of association, transcendentalists were tasked with writing their theory based on the changes and the development of these new phenomena. Henry David Thoreau, Ralph Waldo Emerson, and Margaret Fuller all represent the thoughts of the transcendentalists as they try to describe their own version of society while remedying the present problems. With some exceptions and some flexibility on the issue, most transcendentalists would agree that there should not be freedom of association since these groups stifle the moral integrity of the individual by putting the efforts of the group above the individual.
Henry David Thoreau discusses the presence of associations within society and the ways that they affect the moral standards people hold themselves to. Specifically, Thoreau said, “I hear of a convention to be held at Baltimore, or elsewhere, for the selection of a candidate for the Presidency, made up chiefly of editors, and men who are politicians by profession; but I think, what is it to any independent, intelligent, and respectable man what decision they may come to, shall we not have the advantage of his wisdom and honesty, nevertheless? Can we not count upon some independent votes? Are there not many individuals in the country who do not attend conventions?” (Thoreau 1849, 13). Thoreau specifically has a problem with the morality of society and the way that just because majorities form, it does not mean that justice is achieved in society. Thoreau says that humans need to hold themselves accountable when it comes to being morally just and with the presence of associations, people no longer hold themselves accountable morally. He says that associations influence one another rather than making decisions for themselves and because of this justice cannot be fully achieved. One fundamental pillar of transcendentalism is the solitary aspect that allows the individual to become their best selves morally and breaking down large institutions like the government. When discussing associations that fall under the political discussion, Thoreau notes above that it is the independent individual that can make the best most reasonable decision based on their morals and their own personal integrity. For this reason, freedom of association would infringe on this integrity because people would no longer need to hold themselves accountable and would rely on the institution for their own morals even though it might not mean achieving justice. Thoreau continues his discussion on associations as he notes that, “You must live within yourself, and depend upon yourself, always tucked up and ready for a start, and not have many affairs” (Thoreau 1849, 23). Thoreau and the transcendentalists all concur that that best way to become the best an individual could be is through the solitary efforts to live life as one pleases rather than intertwining themselves with the lives of others and living life according to their standards. Specifically, Thoreau notes that individuals should not have many affairs meanings that associations they have should be limited to the necessities of human life therefore limiting the freedom of association. Thoreau’s overall objective is to be morally sound according to one’s own principles and this could be achieved by righting the wrongs one commits and by standing up for the things one might believe are wrong. It was this concept of civil disobedience that contradicts the concept of freedom of association since humans do not stand up to their community out of fear of being excommunicated. With this fear, people are not as likely to commit acts of civil disobedience as Thoreau encourages to maintain a moral standard within society.
Other transcendentalists like Ralph Waldo Emerson carried the conversation about associations forward, by even allowing some associations while remaining skeptical of their effects on society. He initially disproves of associations claiming that “We think all other distinctions and ties will be slight and fugitive, this of caste or fashion for example; yet come from year to year and see how permanent that is, in this Boston or New York life of man, where too it has not the least countenance from the law of the land. Not in Egypt or in India a firmer or more impassable line. Here are associations whose ties go over and under and through it, a meeting of merchants, a military corps, a college class, a fire-club, a professional association, a political, a religious convention;—the persons seem to draw inseparably near; yet, that assembly once dispersed, its members will not in the year meet again. Each returns to his degree in the scale of good society, porcelain remains porcelain, and earthen earthen. The objects of fashion may be frivolous, or fashion may be objectless, but the nature of this union and selection can be neither frivolous nor accidental” (Emerson 1844, 387). In describing what is reality when it comes to freedom of association, Emerson notes that most interactions between people are surface level and have no true moral value to the people involved. Emerson understands that associations are not necessary and might cause more damage to society by numbing people from taking accountability for their actions in society. He also understands that by joining these associations individuals no longer focus on their own self-reliance and begin to need one another more, when people should be living off their own thoughts and capabilities according to Emerson. Emerson focuses on the fact that being self-reliant will contribute to a person’s higher self and therefore the people should actively pursue their own version of what would be their higher self. However, being a part of associations or institutions, would stifle this potential because rather than pursuing a higher individual self, based on individual actions, people become geared towards an agenda that is not of their own and therefore in no way contributing to the development of their higher self. Emerson even notes above that these associations have no other value than what society assigns to them considering that these people can separate themselves from one another for an extended period and when they reconvene nothing has changed. It is the fact that Emerson believes that these associations are very disposable and surface level that makes him question whether these associations are good for society and should be allowed. Emerson carries this thought forward as he notes that “Friendship and association are very fine things, and a grand phalanx of the best of the human race, banded for some catholic object; yes, excellent; but remember that no society can ever be so large as one man. He, in his friendship, in his natural and momentary associations, doubles or multiplies himself; but in the hour in which he mortgages himself to two or ten or twenty, he dwarfs himself below the stature of one” (Emerson 1844, 456- 457). Emerson holds the idea of self-reliance, as Thoreau does, but differs in his approach to freedom of association. Emerson holds that these types of associations should be allowed to exist so long as people retain their individuality and use the associations to further their capabilities within society. However, Emerson is still cautious of these institutions since the ones present were corrupt and lost sight of the original mission of forming the association in the first place. Emerson still believes, as the others do, the importance of being self-reliant but allows these associations for the sole purpose of allowing people to pursue their higher faculties. He believes that in an ideal world, these associations can be good, but the problems come when people begin to rely on them for everything rather than doing things themselves. Emerson concludes that there should be freedom of association with limitations, which differs from the other transcendentalists, but resembles the others in that the associations one forms are toxic and should be secondary when compared to the ability to advance one’s higher self. This is to say that Emerson remains pessimistic about the presence of associations but acknowledges that they have a place within society.
Margaret Fuller puts the discussion of association into different terms as she criticizes institutions and similar associations as harmful to minorities. She carries this notion and criticism of institutions forward as she notes that “This author, beginning like the many in assault upon bad institutions, and external ills, yet deepening the experience through comparative freedom, sees at last that the only efficient remedy must come from individual character. These bad institutions, indeed, it may always be replied, prevent individuals from forming good character, therefore we must remove them” (Fuller 1855,76). Fuller concludes that institutions are detrimental to the state of society due to the oppressive nature they take when it comes to minorities like women and the slave population. Fuller takes more of a feminist approach to the transcendentalist movement in the ways that she describes the way that society in general has abused women and minorities, hence why she believes that being more self-reliant is important. To her, self-reliance frees the oppressed from the chains of discrimination as people can move away from the abusive environments and into a sphere where the individual can live as they please. Although
Fuller’s work specifies about the status of women, most transcendentalists were also abolitionists and again used the same argument that the institutions society formed, stifle the progress of the individual and should therefore be relinquished to do as they please. Like the others, Fuller is concerned with the moral character of the individual and the way that the individual should hold themselves accountable for their moral being. However, she notes that one cannot achieve sound principles because these institutions instill the same values within people so that they do not come to their own conclusions about what principles and ideologies they want to live by. Fuller would have a problem with freedom of association since it is these associations that keep people oppressed and prevent them from moving towards a higher moral standard. Furthermore, in his discussion of resembling sentiments from others, Fuller notes that “Fourier says, As the institutions, so the men! All follies are excusable and natural under bad institutions. Goethe thinks, As the man, so the institutions! There is no excuse for ignorance and folly. A man can grow in any place, if he will. Ay! but, Goethe, bad institutions are prison-walls and impure air, that make him stupid, so that he does not will” (Fuller 1855, 124). Continuing Fuller’s sentiments from before, is the idea that these institutions make people unpleasant due to the things individuals are taught within these institutions. However, what is worth noting is the interchangeability between the words “institution” and “association”. Institutions usually are pillars within society that hold significance and influence the rest of society, while associations are groupings according to similarities between individuals and may or may not influence the rest of society. Fuller specifically names religion as one of the institutions that stifle human progress in society, but from the early discussion of what an association is, religion can be classified as an association as well. It is because of the similarity between the two word’s definition that implicitly asserts that Fuller would not be in favor of the freedom of association because of the brutal treatment of minorities within society.
Fuller values the moral standing of the individual and believes that it only progresses through the individual and the decision they make through their own personal actions and decisions. Like most of the other transcendentalists, freedom of association is not encouraged since they value independents acting in their own moral interests rather than the interests of society.
Transcendentalists face the problem of retaining a level of individuality in a world that is increasingly becoming reliant on one another, playing out the exact problem that the authors describe above. The world now has become increasingly corrupt as Emerson describes and people submit themselves to the agenda of their associates rather than thinking and developing for themselves and for their own private efforts. Transcendentalists now would push for the independence of the individual from associations that they claim poison the integrity of society, preventing people from fully developing their higher beings.
References:
Emerson, Ralph Waldo. 1940. The Complete Essays and Other Writings of Ralph Waldo Emerson edited by Brooks Atkinson. The Modern Library New York.
Fuller, Margaret. Woman in the Nineteenth Century : and Kindred Papers Relating to the Sphere, Condition and Duties, of Woman. Massachusetts: J. P. Jewett ; Jewett Proctor & Worthington ; Sheldon, Lamport, 1855, 1855.
Thoreau, Henry David. Civil Disobedience. New York, New York: Open Road Media Integrated Media, 2015.
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/
While freedom of association is a fundamental human right today, it has not always been recognized as such. Furthermore, several philosophers stretching from the Enlightenment period to the 20th century have argued for restrictions to be placed on freedom of association, rendering it a conditional right. Thomas Hobbes, Jean-Jacques Rousseau, Karl Marx, and Carl Schmitt are four such philosophers who, despite being products of varying centuries, disputed the classification of freedom of association as a fundamental and unconditional right in their respective social, political, and economic contexts.
Thomas Hobbes (1588-1679)
Hobbes viewed freedom of association as an important social right, but not as a fundamental or unconditional one. Freedom of association was subject to political authority under the agreement that both the citizens and authority entered into to maintain societal and political order. This agreement exists to counter the natural state of human life which is “solitary, poore, nasty, brutish, and short” (Hobbes). By giving up some freedom and liberty in exchange for order, protection, and security from the sovereign or authority, the natural state of humanity can be counteracted (Lloyd). Hobbes emphasized that while individuals are allowed to form relationships and create associations with others, these groups are ultimately subordinated to the sovereign, who can dissolve associations for the good of society to maintain peace and order.
Jean-Jacques Rousseau (1712-1778)
Rousseau’s views on freedom of association are heavily centered on his ideal of a social contract. This is a relationship that exists between the individual and the state in which the individual experiences no net loss of freedom, but rather exchanges some of his natural freedom for civil freedom (Bertram). In his seminal work The Social Contract, Rousseau explains this exchange by emphasizing that man should promote the common good of society over his own interests: “Each citizen would then be perfectly independent of all the rest, and at the same time very dependent on the city; which is brought about always by the same means, as the strength of the State can alone secure the liberty of its members.” (Rousseau, 24). The main issue with unconditional freedom of association came from his claim that “the required degree of social cohesion could not, in practice, be achieved merely through appeal to rational self-interest” (Chappell). This is not to say that Rousseau believed in stamping out individuality in its entirety, just that devotion to a stable political and societal status quo should be the main priority of civilized societies.
Karl Marx (1818-1883)
Marx held a more complex view of freedom of association than other political philosophers. His philosophy was rooted in a socially mediated economic structure that would then, in turn, impact a society's political and social practices—he believed in abolishing private ownership of production (capitalism) and instead establishing collective ownership (socialism or communism). He believed that capitalist systems limit and distort freedom of association because of their economically exploitative and class-based structures; relationships in capitalist societies are never between “individuals,” but rather between “workers and capitalist, between farmer and landlord” (Marx, 44). Socialist or communist political and societal structures would allow freedom of association because individuals could unite freely based on their interests and needs (Jian-xing, 351).
Carl Schmitt (1888-1985)
Schmitt was a prominent member of the Nazi party, and his views on freedom of association are very much influenced by his “anti-democratic and anti-liberal” political beliefs (Frye, 818). In a similar approach to Hobbes, Schmitt believed that freedom of association is an important but highly conditional right that is subject to a central authority. If associations prove to be a threat to the central authority or order of society, the authority must dissolve them (Vinx). He stipulates that the decisions of the authority should not be influenced by external morals, but rather solely based on political reasoning (Vinx). His parameters on freedom of association raise concerns over the potential to justify authoritarianism and the abuse of democratic principles.
REFERENCES
Bertram, Christopher, "Jean Jacques Rousseau", The Stanford Encyclopedia of Philosophy (Summer 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = <https://plato.stanford.edu/archives/sum2023/entries/rousseau/>.
Chappell, Richard. “Rousseau and Freedom.” Philosophy, et cetera, April 27, 2005. https://www.philosophyetc.net/2005/04/rousseau-and-freedom.html.
Frye, Charles E. “Carl Schmitt’s Concept of the Political.” The Journal of Politics 28, no. 4 (1966): 818–30. https://doi.org/10.2307/2127676.
Hobbes, Thomas. “The Project Gutenberg eBook of Leviathan, by Thomas Hobbes.” Edited by Edward White and David Widger. The Project Gutenberg eBook of Leviathan, by Thomas Hobbes, March 27, 2021. https://www.gutenberg.org/files/3207/3207-h/3207-h.htm.
Jian-xing, Y., Jun-guo, C. A reconsideration of Marx’s idea of “association of free individuals”. J. Zhejiang Univ.-Sci. 2, 348–355 (2001). https://doi-org.uc.idm.oclc.org/10.1007/BF02839474
Lloyd, Sharon A. and Susanne Sreedhar, "Hobbes’s Moral and Political Philosophy", The Stanford Encyclopedia of Philosophy (Fall 2022 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = <https://plato.stanford.edu/archives/fall2022/entries/hobbes-moral/>.
Marx, Karl. Edited by Matthew Carmody. The Poverty of Philosophy, 2009. https://www.marxists.org/archive/marx/works/1847/poverty-philosophy/.
Rousseau, Jean-Jaques. Translated by G.D.H/ Cole. The Social Contract or Principles of Political Right. Accessed July 13, 2023. https://discoversocialsciences.com/wp-content/uploads/2018/07/Rousseau-Social-Contract.pdf.
Sowell, Thomas. “Karl Marx and the Freedom of the Individual.” Ethics 73, no. 2 (1963): 119–25. http://www.jstor.org/stable/2379553.
Vinx, Lars, "Carl Schmitt", The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2019/entries/schmitt/>.
Williams, Garrath. “Thomas Hobbes: Moral and Political Philosophy.” Internet Encyclopedia of Philosophy. Accessed July 11, 2023. https://iep.utm.edu/hobmoral/.
The principles of federalism play an interesting role in the manner in which the right to freedom of expression is exercised. Historically, the founding fathers were divided on whether there should even be a bill of rights; the Constitutional Convention of 1787 did not include an explication of rights in the writing of the Constitution (Hail, 2020). The Bill of Rights was written as an afterthought, and as political scientist James Burnham observed, “ ‘These rights, in short, are limits, not powers’ (p. 87). Thus the constitutional theory of the founders was premised upon limitations to the powers of the federal government as reflected in the Bill of Rights” (Hail, 2020). Eventually, with the growth of the Union over the next 200 years, state constitutions started to include explications of the protected rights within their states, and as a result, some states are more protective over individual rights than the federal government itself: “For example, at the national level the right to privacy is derived from implications in the First, Third, Fourth, Fifth, Ninth, and 14th Amendments. By contrast, half the states have enumerated constitutionally or by statute an explicit, and typically broader, right to privacy. Federalism gives the states latitude to experiment with policy areas under the First Amendment that it does not give to the national government, even though the latter retains an important role.” (Hail, 2020).
Federalism scholar Daniel J. Elazar observed that the states participate in policy experimentation and also provide more legal protection in addressing the unique and specific local/regional needs (Hail, 2020). However, in terms of actual exercise of the freedom of expression in particular, and related conflicting law between that of state and federal, “Federal speech laws survive more than half the time, state laws survive only a quarter of the time, and local laws almost always fail. This free speech federalism is likely attributable to some combination of federal courts deferring to federal lawmakers and the relative poor quality of law- making at the lower levels of government.” (Winkler 187, 2009).
The federal government holds more power regarding cases involving freedom of expression, often bending both federal and state law to its will, oftentimes going out of its way to justify federal laws while heavily scrutinizing already narrow state laws. In the 1999 case of United States v. McCorkle, a federal court declined to identify the federal government’s reasoning for compelling secrecy regarding an order sealing transcripts of in camera proceedings sought by a newspaper. Another court deemed that the newspaper who was seeking access to the transcripts had failed at its job to offer effective alternatives to complete closure, “yet, under strict scrutiny the burden of showing no less-restrictive alternatives belongs to the government, not the challenger. Moreover, the newspaper had no information about what the subject of the bench conferences was and thus could not reasonably be expected to offer suitable alternatives to closure” (Winkler 172, 2009). This case saw federal right-of-access restrictions upheld solely because courts supposedly did not follow the traditional requirements of the strict scrutiny standard.
Another case, contrastingly, shows the federal courts doing everything they could to invalidate the state restrictions. In the 1993 case of Lind v. Grimmer, a federal court “invalidated the application of a state law denying media access to pending complaints filed with the state campaign-finance spending commission. The court reasoned that the government interest in encouraging people to run for office was not protected by the restriction because complainants and others remained free to air their charges informally to the public. Yet, the same could be said about any restriction on the right of access” (Winkler 172-173, 2009).
Since the 1965 case of Bond v. Floyd, legislators, like any other citizen, are protected under the free expression embodied in the First Amendment. After being elected to the Georgia House of Representatives, Julian Bond, who was an African-American, was refused his seat due to anti-Vietnam war statements he made. Some House members challenged that his statements aided the US’s enemies and violated his mandatory oath to support the Constitution and therefore, he was not permitted to a seat in the House (Hudson Jr., 2009). The Court ruled in favor of Bond due to his fundamental rights to freedom of expression and speech because:
“Free expression in the legislature not only serves the deliberative process and allows voters to choose their representatives according to their expressed beliefs and opinions, it also reinforces the constitutional safeguards of federalism and the separation of powers. As an expressive act that registers the will, preference, and opinion of a legislator, voting performs a unique communicative function. It expresses loyalty or dissension, agreement or abstention. It can also inform voters of a legislator's position on matters of public concern. Not only is legislative voting expressive, it is also representative and political, and therefore critical to the proper functioning of participatory democracy” (Scherr 257, 1991).
From the provided evidence, federalism can serve to protect the right to freedom of expression, but oftentimes, it allows for the federal government to somewhat bully state courts into the decisions that best suit them at the time.
References:
Federalism, Michael W. Hail, The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.
Freedom and Federalism: The First Amendment’s Protection of Legislative Voting, Steven N. Scherr, 257, The Yale Law Journal, 1991 New Haven.
Hudson: https://www.mtsu.edu/first-amendment/article/1597/free-speech-during-wartime#:~:text=Freedo
Free Speech Federalism, Adam Winkler, 172-173, 187, Michigan Law Review, 2009 Ann Arbor.
Rights to privacy may in some cases conflict with the right to free expression. For instance, according to Duke University Law Professor George Christie, there are cases in Europe in which speech pertaining to information not already known by the public can be successfully argued to be a violation of privacy, and thus illegal (Christie). However, Christie argues that this argument is more difficult to make in the United States, as freedom of expression is the “preferred value” over privacy in American jurisprudence. This preferred value is exhibited in even the most extreme cases, such as Snyder v. Phelps, where the court upheld the rights of the Westboro Baptist Church to protest adjacent to the funeral of a Marine who had been killed in Iraq (Christie).
As explained by Christie, while the Snyder v. Phelps case did strongly affirm the right to free speech, an additional conflicting right emerged from Justice Alito’s dissent. Alito asserted that the protests could violate the common law tort of intentional infliction of emotional distress, as the disturbing language of the church protests may have caused the plaintiff severe emotional distress. Through this, Alito affirms that individuals have a legal right to not be afflicted by speech that results in emotional distress, contradicting the right to free expression.
Additionally, rights to public safety may contradict rights to free expression. This is largely demonstrated by international law, which upholds restrictions on free speech when they are intended to prevent defamation, protect national security, and uphold public health (Govindu). If speech comes into conflict with any of these areas, it is generally accepted that it can be curtailed by the government. In this way, the rights of others to public safety can overpower the right to individual expression.
In the United States, the Schenck v. United States and subsequent Brandenburg v. Ohio rulings outline the ways in which free speech can be limited in the name of public safety. In Schenck, the court upheld that speech was not constitutionally protected if it will “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Cornell Law School). The guidelines for restricting speech were then further clarified in Brandenburg, which asserted that speech could be prohibited if it was “"directed at inciting or producing imminent lawless action and is likely to incite or produce such action.” Exhibited by these two cases, the public has a right to be protected from dangerous speech. Therefore, through the protection of public safety, the right to free expression is contradicted.
References:
Christie, George. "Private: The Conflict between Freedom of Speech and Other Rights and Values." ACS Expert Forum (2011). https://www.acslaw.org/?post_type=acsblog&p=7987
"Freedom of Speech: Historical Background." Cornell Law School. Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-1/freedom-of-speech-historical-background
Govindu, V. “CONTRADICTIONS IN FREEDOM OF SPEECH AND EXPRESSION.” The Indian Journal of Political Science 72, no. 3 (2011): 641–50.
The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997).
A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015).
As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace.
References:
Americans Say Freedom of Speech is the Most Important Constitutional Right, According to FindLaw.com Survey for Law Day, May 1, PR Newswire Association LLC, 2015 New York.
Freedom of Expression, American Civil Liberties Union, 2020 New York.
The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
In 1919, Justice Holmes, in his dissent regarding the case of Abrams v. United States which saw the arrest of Russian immigrants convicted for handing out anti-war leaflets in New York City, stated that “the right to freedom of expression is at the very foundation of our constitutional theory. The expression of competing ideas in the marketplace of ideas is the best means of discovering the truth.” (Civic 119, 1997). Holmes advocated that the truth is at the “foundation of pursuit of the ultimate good, and pursuit of the ultimate good is the theoretical framework of the Constitution. Therefore, through free expression and the search for the truth, the ‘purpose’ of American liberty and democracy is realized” (Civic 120, 1997).
Almost 20 years later, Justice Benjamin N. Cardozo wrote in the majority opinion of the 1937 case of Palko v. Connecticut (which questioned whether Palko’s second conviction of a crime violated the Fifth Amendment’s protection against double jeopardy) the first explicit hierarchal ordering of human rights (Pacelle Jr.). The verdict of this case caused to Cardozo write that “some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right” (Oyez 2020). Cardozo argued further that certain fundamental rights, including the rights to freedom of speech, religion, and press were the “very essence of a scheme of ordered liberty”(Pacelle Jr., 2020). The next year, Justice Harlan Fiske Stone argued in Footnote 4 of the majority opinion in United States v. Carolene Products that the Court should allow civil and individual rights to occupy a “preferred position” when dealing with economic disputes that also affect fundamental rights (Pacelle Jr., 2020).
Ultimately, from these Supreme Court rulings, one can gather that freedom of expression is a fundamental right that “also underpins most other rights and allows them to flourish. The right to speak your mind freely on important issues in society, access information and hold the powers that be to account, plays a vital role in the healthy development process of any society” (Index on Censorship, 2013). As Amartya Sen writes in his book “Development as Freedom,” access to the freedom of expression is a necessity in the development process of a society and is a developmental goal of its own. The freedom is “both the primary end and the principal means of development” (Index on Censorship, 2013).
References:
Preferred Position Doctrine, Richard L. Pacelle Jr., The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, Murfreesboro.
The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
Why is access to freedom of expression important?, Index on Censorship, 2013 United Kingdom: https://www.indexoncensorship.org/2013/03/why-is-access-to-freedom-of-expression-important/#:~:text=Freedom%20of%20expression%20is%20a,development%20process%20of%20any%20society.