Source/Freedom of Association

What is the oldest written source that mentions this right?

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 (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.

In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association.

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).

What is the oldest written source in this country that mentions this right?

Australia

Australia has detailed records of its constitutional convention, which occurred in the 1890s. In 1897. One speaker alluded to the power of free association: “The English feel the vigor of their public spirit; they have experienced the vigilance of a free press, and the power of associations and public meetings.”

Botswana

Chapter 2 of Botswana’s Constitution (1966) guarantees “freedom of conscience, of expression and of assembly and association.”

Brazil

Brazil’s constitution (1988) has exceptionally detailed freedom of association provisions. Title II-I-5 states that:

- there is total freedom of association for lawful purposes, but any paramilitary association is prohibited;

- creation of associations and, as set forth in law, of cooperatives, requires no authorization, prohibiting state interference in their operations;

- associations may be compulsorily dissolved or their activities suspended only by a judicial decision, which in the former case must be a final and unappealable decision;

- no one can be compelled to join an association or to remain in one;

- when expressly authorized, associations have standing to represent their members judicially and extrajudicially

Canada

Chapter 345 Section 5 of Saskatchewan’s Bill of Rights (1947) states that “every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.”

Part 1 of the Canadian Bill of Rights (1960) lists “freedom of assembly and association” as a guaranteed right. This was an ordinary act of parliament, and it has been replaced by the Canadian Charter of Rights and Freedoms, an amendment to the Canadian Constitution.

China

Chapter 2-4 of the Provisional Constitution of the Republic of China (1912) states that “citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.”

The 1912 Republic of China Constitution refers to the one adopted by the nationalist government on the mainland, led by Sun Yat-sen. Despite its lofty ideals, this government never really maintained power. After a period of instability and civil war, the CCP forced the nationalist government to retreat to Taiwan, which is known now as the Republic of China. Taiwan suspended its constitution, and it was under a repressive martial-law system until 1987. It is now a constitutional democracy, and freedom of association is protected in its constitution. The PRC constitution claims to protect freedom of association, among other civil liberties.

Estonia

Section II-18 of Estonia’s first constitution (1920) states that “The forming of associations and unions is free in Esthonia."

France

Title I of the French Constitution of 1791 guarantees the right of peaceful assembly.

“Liberty to citizens to assemble peaceably and without arms in accordance with police regulations.”

Though the French Constitution of 1791 protected the right to assemble, French revolutionaries considered explicitly excluding free association (Boyd 257). The French enacted a law protecting free association in 1901, and enshrined it in their constitution in 1971 (Boyd 2008, 237).

Germany

The Weimar Constitution (1919) established freedom of association.

Article 123: “All Germans have the right to assembly peacefully and unarmed without giving notice and without special permission.”

Article 124: “All Germans have the right to form associations and societies for purposes not contrary to the criminal law.”

India

The following quote was attributed to Gandhi in 1922:

“Freedom of association is truly respected when assemblies of people can discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it.., The fight for swaraj means a fight for this threefold freedom before all else."

Part III Article 19 of the Indian Constitution (1950) grants citizens the right to “form associations or unions” (Dalton).

Republic of Ireland

Article 40 of the Irish Constitution (1940) guarantees “the right of the citizens to form associations and unions.”

Italy

Part 1 Title 1 Article 18 of the Italian Constitution (1947) states that:

- “Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law.”

- “Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.”

Japan

Chapter III Article 21 of the Japanese Constitution (1947): “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.”

Additionally, though finding direct texts has proven difficult, there have been political movements for greater political expression since the pre-war era. The freedom and popular rights movement existed throughout the second half of the 19th century, and its members advocated for increased freedom of assembly beginning no later than 1886 (Tierney 2013, 21).

Latvia

The Latvian Constitution added a section on fundamental rights in 1998. Article 102 states that “everyone has the right to form and join associations, political parties and other public organisations.”

Mexico

From Section 1 Article 9 the Mexican Constitution of 1857: “No one shall be deprived of the right peaceably to assemble or to come together for any lawful purpose; but only citizens shall be permitted to exercise this right for the purpose of taking part in the political affairs of the country. No armed assembly shall have the right to deliberate.”

New Zealand

Part 2 Section 17 of the Bill of Rights Act (1990) states that, “Everyone has the right to freedom of association.”

Nigeria

Chapter IV Section 37 of the constitution of the Second Republic (1979) states that “every person shall be entitled to assemble freely and associate with other persons, and any political party, trade union, or other association for the protection of his interests.”

Pakistan

The following is from Part II, Chapter I, Section 17 of Pakistan’s current constitution (1973).

“Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.”

“Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall, within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.”

Portugal

Article 46 of the Portugese Constitution (1976):

“Citizens shall possess the right to freely associate with one another without requiring any authorisation, on condition that such associations are not intended to promote violence and their purposes are not contrary to the criminal law.”

“Associations shall pursue their purposes freely and without interference from the public authorities and shall not be dissolved by the state or have their activities suspended, except in such cases as the law may provide for and then only by judicial order.”

“No one shall be obliged to belong to an association, or be coerced to remain therein by any means.”

“Armed associations, military, militarised or paramilitary-type associations and organisations that are racist or display a fascist ideology shall not be permitted.”

South Africa

Chapter 3 section 17 of the 1993 Interim Constitution states that “every person shall have the right to freedom of association.”

South Korea

Chapter two Article Ten of the Constitution (1948): “All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”

United Kingdom

The 1990 Human Rights Act protects the Right to assemble and associate, subject to reasonable and proportionate restrictions. The HRA primarily serves to codify the European Convention on Human Rights into British Law (the ECHR and its associated court are not related to the EU, and the UK is still a signatory).

In 1776, Richard Price, a British writer who supported the American revolution published Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America. Unlike other commentaries on civil rights, he includes discussion on free assembly. He describes a prohibition on “associating for any purposes, except when leave should be given us by a Lord Lieutenant or Viceroy” as being part of a “state of oppression which no country can endure.” Though he does not phrase it as a fundamental right, the fact that Price deems draconian restrictions on association oppressive implies a belief in at least a limited freedom of association. This is the first instance I could find of a political theorist invoking the concept of freedom of association (or the lack thereof).

There is a more explicit case for free association in John Stuart Mill’s On Liberty (1859). Mill lays a broad notion of individual liberty. He then argues 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 (16).”

Before any British thinkers espoused freedom of association as a right, John Locke, Thomas Hobbes, and David Hume addressed the issue (as Boyd helpfully summarizes). Hobbes detested associations, referring to them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man” (257).

Locke disagreed with Hobbes’ cynical perspective on groups. John Locke’s “A Letter Concerning Toleration” primarily concerns religious associations, but he extends certain arguments to associations in general. The italicized text below 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 (2008, 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.26 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. Finally, David Hume’s “Of Parties in General” (1742) is another important piece of Enlightenment work skeptical of associations. His position is more nuanced that Hobbes; he understands that association may exist for different purposes. Factions “of interest” are deemed less dangerous than factions “of principle.” Regarding factions of principle, he wonders the following: “But where the difference of principle is attended with no contrariety of action, but every one may follow his own way, without interfering with his neighbour, as happens in all religious controversies; what madness, what fury can beget such unhappy and such fatal divisions?”

United States

Listed at the bottom of this section is language from the State Constitutions of New Hampshire and North Carolina and the Pennsylvania Declaration of Rights, all from 1776, which articulate the right to assemble (assembly and association are not always interchangeable, but many constitutions group them together). These documents all contain rights to assemble written in remarkably similar language, and they describe the right as politically driven. These were the oldest references to something like the right of association in governing documents.

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 ("Freedom of Assembly and Petition"). The aforementioned state constitutions 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).

As Richard Boyd argues in “The Madisonian Paradox of Free Association,” America’s founders did not explicitly include free association because at least some of them were skeptical of it, worrying that certain associations would be conspiratorial or seditious. He summarizes the British Enlightenment tradition skeptical of associations, which influenced the founders (I describe this in the last few paragraphs of the UK section, on Hobbes, Locke, and Hume). James Madison, the primary author of the Bill of Rights, feared the influence of factions, which private associations furthered. As Boyd notes, Madison viewed association as a “second-order” right (page 258), whose existence is tolerable because institutions can mitigate its worst effects (page 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.

As Boyd notes, there are 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).

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.”

Article XVIII of North Carolina’s Constitution: “That the people have a right to assemble together, to consult for their common good, to instruct their Representatives, and to apply to the Legislature, for redress of grievances.” Section 21 of New Hampshire’s Constitution: “The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.”

Section XVI of the Pennsylvania Declaration of Rights: “That the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.

Is there another noteworthy written source from the past that mentions this right?

Pope Leo XIII forcefully argued for free association in Section 51 of Rerum novarum (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."

Is the identification of this right associated with a particular era in history, political regime, or political leader?

This right became an element of political discourse in the late Enlightenment, especially the American Revolution. In the mid and late 1800s, writers such as Mill and Leo XIII pushed the idea into the mainstream.

Legal Codification

Is this right protected in the Constitutions of most countries today?

Constitutions written after 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.

For example, noted by Kiai, in Malaysia, the Peaceful Assembly Act 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 2012. Likewise, in Nigeria, the President ushered in the Same Sex Marriage Act in 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 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.

Is it contained in the US Constitution?

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. 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.” Furthermore, the court asserted that freedom of association was undoubtedly covered by the Due Process Clause of the Fourteenth Amendment, 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 Marshall 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.

Has it been interpreted as being implicit in the US Constitution?

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.”

Are there any exceptions in American law to this right?

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. Furthermore, while one has the liberty to vote with, join, and create independent political parties, upheld by the William V. Rhodes ruling, the state can still regulate these parties if they violate other aspects of the Constitution. 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.

Is this right enshrined in international and regional human rights treaties?

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;”

Limitations / Restrictions

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

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

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

Subsequent political theorists built upon Locke’s theory of rights and liberties, and a number of them elected to deal with the right to freedom of association more directly. The United States Constitution, much of which rests upon Lockean political theory, is one of the first documents to directly address freedom of assembly in its text. Perhaps the buildup to the American Revolution, in which groups like the Sons of Liberty and the Stamp Act Congress were outlawed and broken up by the British government, affected the Constitutional Convention’s decision to include assembly in the Bill of Rights. The Constitution’s First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (The Constitution of the United States of America). The Constitutional Convention, led by prominent statesman James Madison, used the word peaceably to signal that citizens were not entitled to the complete freedom of assembly if such activity could potentially generate violence or unrest (Law Library of Congress, “The Right to Peaceable Assembly”). The Cornell Law Review writes that this guarantee gradually came to protect citizens’ rights to participate in organizations that regularly utilize their members’ constitutional rights to freely assemble and petition the government. It states that over time, “Supreme Court decisions gradually determined that “the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition” (Legal Information Institute, “Right of Association”). While Madison and his colleagues did not directly address freedom of association in the Constitution’s text, they did lay the groundwork for its realization years later.

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

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

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

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

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

Is this right at times curtailed by private actors?

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.

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

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

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

Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A 2020 Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”). The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).

The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June 2020, for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.

The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.