First amendment associational privilege

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 grievance.

The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment’s text does not expressly identify a “freedom of association,” 1 Footnote
Griswold v. Connecticut, 381 U.S. 479, 482 (1965) . the Supreme Court has recognized this right as “an indispensable means of preserving” other First Amendment freedoms.2 Footnote
Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) . Specifically, the Court “has recognized a right to associate for the purpose of engaging” in “speech, assembly, petition for the redress of grievances, and the exercise of religion.” 3 Footnote
Id.

This right of “expressive association” is the focus of this set of essays.4 Footnote
Id. The Court has also recognized a “personal liberty” interest in “certain intimate human relationships,” protected not only by the First Amendment, but also by the Due Process Clause of the Fourteenth Amendment.5 Footnote
Id. at 617–18 . See, e.g., Griswold , 381 U.S. at 486 (recognizing marriage as a protected relationship); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that “same-sex couples may exercise the fundamental right to marry,” that is “inherent in the liberty of the person” and protected under the Fourteenth Amendment). Although these two conceptions of associational freedom differ, the Court has explained that “[i]n many cases, government interference with one form of protected association will also burden the other form of association.” Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987) . This concept of “intimate association” is discussed at the end of this section and in the essays on substantive due process.6 Footnote
Roberts , 468 U.S. at 618 . See Amdt14.S1.6.3.4 Family Autonomy and Substantive Due Process and Amdt14.S1.6.3.5 Marriage and Substantive Due Process.

The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments “have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies” formed to petition the government.7 Footnote
Presser v. Illinois, 116 U.S. 252, 267 (1886) . See Amdt1.10.1 Historical Background on Freedoms of Assembly and Petition. It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association.8 Footnote
See Thomas v. Collins, 323 U.S. 516, 530 (1945) ( “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” ). In 1937, the Court held that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” 9 Footnote
De Jonge v. Oregon, 299 U.S. 353, 364 (1937) . The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union “is protected not only as part of free speech, but as part of free assembly.” 10 Footnote
Thomas , 323 U.S. at 532, 539–40 .

Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment.11 Footnote
U.S. Const. amend. I ; e.g., Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 409 (1950) . By 1958, the Court considered it “beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of” civil liberties such as the freedom of speech.12 Footnote
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) . Legal scholars have debated whether the Court initially grounded this right of association in the First Amendment (applicable to the states through the Fourteenth Amendment) or in the Fourteenth Amendment’s Due Process Clause. See John D. Inazu , The Strange Origins of the Constitutional Right of Association , 77 Tenn. L. Rev. 485 , 501–17, 530–33 (2010) (discussing these two constitutional arguments and the early legal commentary after NAACP v. Alabama ex rel. Patterson ); Kenneth L. Karst , The Freedom of Intimate Association , 89 Yale L.J. 624 , 624 (1980) (writing that before the Court’s 1965 decision in Griswold v. Connecticut , “the notion of constitutional protection of the freedom of association was a First Amendment doctrine and little more” ). Ultimately, the Court recognized two different strands of freedom of association, tying the freedom of expressive association to the First Amendment and the freedom of intimate association primarily to the Fourteenth Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984) . Although political association is a classic example of expressive association,13 Footnote
See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) (plurality opinion) (calling the “freedom of political association” a “highly sensitive area[ ]” of First Amendment activity requiring investigations to be “carefully circumscribed” ); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (observing the “special place the First Amendment reserves” for a political party’s selection of its own candidate). the First Amendment also protects “forms of ‘association’ that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members.” 14 Footnote
Griswold v. Connecticut, 381 U.S. 479, 483 (1965) ; see also Alabama ex rel. Patterson , 357 U.S. at 460–61 (stating that “it is immaterial,” for First Amendment purposes, “whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters” ).

Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati , the Court held that a local ordinance violated the freedoms of association and assembly on its face.15 Footnote
402 U.S. 611, 615 (1971) . The Court also held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 614–15 . The challenged ordinance made it a crime for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” 16 Footnote
Id. at 611 (internal quotation marks omitted). According to the Court, this ordinance was “aimed directly at activity protected by the Constitution” —the freedoms of association and assembly.17 Footnote
Id. at 616 . By comparison, in City of Chicago v. Morales , a plurality of the Court concluded that a Chicago loitering ordinance did not substantially affect protected association because the ordinance defined loiter as “remaining in one place ‘with no apparent purpose.’” 527 U.S. 41, 53 (1999) . The Court nevertheless held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 51 .

More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one’s associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals.18 Footnote
Alabama ex rel. Patterson , 357 U.S. at 462–63 . See Amdt1.8.3.2 Disclosure of Membership Lists. Accordingly, First Amendment protections “are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals,” but also by laws or regulations that may have a “chilling effect on association.” 19 Footnote
Ams. for Prosperity Found. v. Bonta , No. 19-251, slip op. at 19 (U.S. July 1, 2021) . Government actions other than compelled disclosure can also burden the freedom of association. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982) (reasoning that holding an organization liable for unlawful conduct that it neither authorized nor ratified “would impermissibly burden the rights of political association” ).

The Court’s decisions in this area, though not always reconcilable, reflect a balancing of First Amendment rights and governmental interests as well as the major political and social events of the era. For example, 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.20 Footnote
See Amdt1.8.3.1 Associational Privacy to Amdt1.8.3.5 Donor Disclosure Requirements. The Court largely credited concerns that states and the federal government expressed at that time about the security threat that Communism posed to the United States,21 Footnote
See, e.g., Uphaus v. Wyman, 360 U.S. 72, 80 (1959) (holding that New Hampshire’s interest in ferreting out “subversive activities” outweighed the associational-privacy interests of attendees at a summer camp run by suspected Communists). even while applying increasing First Amendment scrutiny to laws that burdened the association of other groups.22 Footnote
See, e.g., Alabama ex rel. Patterson , 357 U.S. at 463 (holding that Alabama did not have a “subordinating” interest in obtaining the NAACP’s membership lists “sufficient to justify the deterrent effect” that disclosure could have on NAACP members’ right of association). Describing its own decisions in 1963, the Court explained, “the Communist Party is not an ordinary or legitimate political party[,]” and thus, Party membership “is a permissible subject of regulation and legislative scrutiny.” 23 Footnote
Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 547 (1963) . While the Court later abandoned some of its presumptions about the dangers of bare association, the Court’s care with respect to issues of national security remained evident in later cases, such as a 2010 decision upholding a ban on domestic support of designated foreign terrorist organizations.24 Footnote
See Amdt1.8.2.5 Material Support Bar.

Although many of the leading Supreme Court decisions on the freedom of association concerned burdens on association, the Court has also held that “compelled association” can violate the First Amendment.25 Footnote
Special rules apply in the context of certain religious organizations. For example, the First Amendment protects a religious organization’s freedom to select its own ministers to a greater degree than a secular organization’s selection of its employees. See Amdt1.2.3.4 Church Leadership and the Ministerial Exception. The Supreme Court has explained that, although the “right to freedom of association is a right enjoyed by religious and secular groups alike,” the First Amendment itself “gives special solicitude to the rights of religious organizations” through its Religion Clauses. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 189 (2012) . For example, in some circumstances, laws requiring organizations to include persons with whom they disagree on political, religious, or ideological matters can violate members’ freedom of association, particularly if those laws interfere with an organization’s message.26 Footnote
Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000) . See Amdt1.8.4.2 Nondiscrimination and Equal-Access Requirements.

As with other individual rights protected by the Constitution, the freedom of association is not absolute.27 Footnote
U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 567 (1973) . First, the government may prohibit “agreements to engage in illegal conduct,” even though such agreements “undoubtedly possess some element of association.” 28 Footnote
Brown v. Hartlage, 456 U.S. 45, 55 (1982) ; see also Madsen v. Women’s Health Ctr., 512 U.S. 753, 776 (1994) (stating that the freedom of association “does not extend to joining with others for the purpose of depriving third parties of their lawful rights” ). Second, forms of association that are neither “intimate” nor “expressive” within the meaning of First Amendment case law may not receive constitutional protection.29 Footnote
For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. Dallas v. Stanglin, 490 U.S. 19, 28 (1989) . Excluding adults did not infringe the teenagers’ right to associate with persons outside of their age group, the Court held, declaring that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.” Id. at 25 . Third, as noted above, even when a law implicates protected association, the government’s interests may outweigh the burdens on association in some circumstances.30 Footnote
E.g., Holder v. Humanitarian L. Project , 561 U.S. 1, 40 (2010) . Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group’s concerns.31 Footnote
See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 288 (1984) (recognizing the “government’s freedom to choose its advisers” in upholding a state law requiring public universities to “meet and confer” with the faculty union rather than individual faculty members); Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee’s right to “associate and speak freely and petition openly,” it “does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it” ); Babbitt v. UFW Nat’l Union, 442 U.S. 289, 313 (1979) (holding that a state “was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate” ).

Footnotes 1 Griswold v. Connecticut, 381 U.S. 479, 482 (1965) . 2 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) . 3 Id. 4 Id. 5 Id. at 617–18 . See, e.g., Griswold , 381 U.S. at 486 (recognizing marriage as a protected relationship); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that “same-sex couples may exercise the fundamental right to marry,” that is “inherent in the liberty of the person” and protected under the Fourteenth Amendment). Although these two conceptions of associational freedom differ, the Court has explained that “[i]n many cases, government interference with one form of protected association will also burden the other form of association.” Bd. of Dirs. of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544 (1987) . 6 Roberts , 468 U.S. at 618 . See Amdt14.S1.6.3.4 Family Autonomy and Substantive Due Process and Amdt14.S1.6.3.5 Marriage and Substantive Due Process. 7 Presser v. Illinois, 116 U.S. 252, 267 (1886) . See Amdt1.10.1 Historical Background on Freedoms of Assembly and Petition. 8 See Thomas v. Collins, 323 U.S. 516, 530 (1945) ( “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.” ). 9 De Jonge v. Oregon, 299 U.S. 353, 364 (1937) . 10 Thomas , 323 U.S. at 532, 539–40 . 11 U.S. Const. amend. I ; e.g., Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 409 (1950) . 12 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) . Legal scholars have debated whether the Court initially grounded this right of association in the First Amendment (applicable to the states through the Fourteenth Amendment) or in the Fourteenth Amendment’s Due Process Clause. See John D. Inazu , The Strange Origins of the Constitutional Right of Association , 77 Tenn. L. Rev. 485 , 501–17, 530–33 (2010) (discussing these two constitutional arguments and the early legal commentary after NAACP v. Alabama ex rel. Patterson ); Kenneth L. Karst , The Freedom of Intimate Association , 89 Yale L.J. 624 , 624 (1980) (writing that before the Court’s 1965 decision in Griswold v. Connecticut , “the notion of constitutional protection of the freedom of association was a First Amendment doctrine and little more” ). Ultimately, the Court recognized two different strands of freedom of association, tying the freedom of expressive association to the First Amendment and the freedom of intimate association primarily to the Fourteenth Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984) . 13 See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) (plurality opinion) (calling the “freedom of political association” a “highly sensitive area[ ]” of First Amendment activity requiring investigations to be “carefully circumscribed” ); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (observing the “special place the First Amendment reserves” for a political party’s selection of its own candidate). 14 Griswold v. Connecticut, 381 U.S. 479, 483 (1965) ; see also Alabama ex rel. Patterson , 357 U.S. at 460–61 (stating that “it is immaterial,” for First Amendment purposes, “whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters” ). 15 402 U.S. 611, 615 (1971) . The Court also held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 614–15 . 16 Id. at 611 (internal quotation marks omitted). 17 Id. at 616 . By comparison, in City of Chicago v. Morales , a plurality of the Court concluded that a Chicago loitering ordinance did not substantially affect protected association because the ordinance defined loiter as “remaining in one place ‘with no apparent purpose.’” 527 U.S. 41, 53 (1999) . The Court nevertheless held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment’s Due Process Clause. Id. at 51 . 18 Alabama ex rel. Patterson , 357 U.S. at 462–63 . See Amdt1.8.3.2 Disclosure of Membership Lists. 19 Ams. for Prosperity Found. v. Bonta , No. 19-251, slip op. at 19 (U.S. July 1, 2021) . Government actions other than compelled disclosure can also burden the freedom of association. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982) (reasoning that holding an organization liable for unlawful conduct that it neither authorized nor ratified “would impermissibly burden the rights of political association” ). 20 See Amdt1.8.3.1 Associational Privacy to Amdt1.8.3.5 Donor Disclosure Requirements. 21 See, e.g., Uphaus v. Wyman, 360 U.S. 72, 80 (1959) (holding that New Hampshire’s interest in ferreting out “subversive activities” outweighed the associational-privacy interests of attendees at a summer camp run by suspected Communists). 22 See, e.g., Alabama ex rel. Patterson , 357 U.S. at 463 (holding that Alabama did not have a “subordinating” interest in obtaining the NAACP’s membership lists “sufficient to justify the deterrent effect” that disclosure could have on NAACP members’ right of association). 23 Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 547 (1963) . 24 See Amdt1.8.2.5 Material Support Bar. 25 Special rules apply in the context of certain religious organizations. For example, the First Amendment protects a religious organization’s freedom to select its own ministers to a greater degree than a secular organization’s selection of its employees. See Amdt1.2.3.4 Church Leadership and the Ministerial Exception. The Supreme Court has explained that, although the “right to freedom of association is a right enjoyed by religious and secular groups alike,” the First Amendment itself “gives special solicitude to the rights of religious organizations” through its Religion Clauses. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 189 (2012) . 26 Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000) . See Amdt1.8.4.2 Nondiscrimination and Equal-Access Requirements. 27 U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 567 (1973) . 28 Brown v. Hartlage, 456 U.S. 45, 55 (1982) ; see also Madsen v. Women’s Health Ctr., 512 U.S. 753, 776 (1994) (stating that the freedom of association “does not extend to joining with others for the purpose of depriving third parties of their lawful rights” ). 29 For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. Dallas v. Stanglin, 490 U.S. 19, 28 (1989) . Excluding adults did not infringe the teenagers’ right to associate with persons outside of their age group, the Court held, declaring that there is no “generalized right of ‘social association’ that includes chance encounters in dance halls.” Id. at 25 . 30 E.g., Holder v. Humanitarian L. Project , 561 U.S. 1, 40 (2010) . 31 See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 288 (1984) (recognizing the “government’s freedom to choose its advisers” in upholding a state law requiring public universities to “meet and confer” with the faculty union rather than individual faculty members); Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee’s right to “associate and speak freely and petition openly,” it “does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it” ); Babbitt v. UFW Nat’l Union, 442 U.S. 289, 313 (1979) (holding that a state “was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate” ).