Associational speech.

• Author: Bhagwat, Ashutosh

ARTICLE CONTENTS I. ASSOCIATION AND SPEECH--A CONVOLUTED RELATIONSHIP A. Association and Assembly in the Supreme Court B. Association, Assembly, Petitioning, and Self-Governance C. Associational Speech II. FREE SPEECH DOCTRINE THROUGH AN ASSOCIATIONAL LENS A. Dissident and Subversive Speech B. The Government as Manager--Public Forums and Government Employees C. Charitable Solicitation D. Campaign Finance Reform and Corporate Speech III. ASSOCIATION AND SPEECH--BROADER LESSONS CONCLUSION In traditional legal thinking, the First Amendment to the U.S. Constitution has been ineluctably, and almost exclusively, tied to freedom of speech. On occasion, mention might also be made of the Press Clause of the First Amendment or of the two Religion Clauses; but free speech has been the central focus of First Amendment law and scholarship. In fact, however, the text of the First Amendment is not limited to, or even particularly focused on, speech. The full text of the Amendment reads as follows: "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." (1)

Freedom of speech is no doubt mentioned, but it is given no particular prominence and is sandwiched in between other, distinct topics. In particular, the First Amendment mentions not only freedom of speech, of the press, and of religion but also freedom of assembly and the right to petition the government. In addition, the Supreme Court has long interpreted the First Amendment to protect an implicit right of association. (2) These last provisions have traditionally been the poor stepchildren of First Amendment law, neglected and ignored.

In the past several years, that tradition of neglect has ended, and we have witnessed an explosion of scholarship on those other aspects of the First Amendment, notably on the rights of association and assembly. (3) These developments appear to have been triggered in part by the general advance of communitarian and civic republican models of democracy in the academy and in part by the Supreme Court's 2000 decision in Boy Scouts of America v. Dale, holding that the First Amendment's right of association protected the Boy Scouts' decision to expel a gay assistant scoutmaster, in violation of state antidiscrimination law. (4) Regardless of its cause, this scholarship has thrown important new light on the significance of these forgotten liberties and their relationship to the better-known provisions of the First Amendment, notably the Free Speech Clause. Most importantly, this scholarship convincingly demonstrates that the textual assembly and petition rights in the First Amendment were historically at least as significant as, and indeed antecedent to, the free speech right. It also strongly suggests that the nontextual association right is best understood as a significant and distinct right, tied to the Assembly Clause and not (as the modern Supreme Court has suggested) derivative of the free speech guarantee.

This Article seeks to take these insights one step further. It proposes that even today, assembly, petition, and association are at least as central to the process of self-governance as is free speech and that assembly and petition were historically viewed as more fundamental to a politically functional society than speech. On the assumption that ensuring self-governance is the primary structural purpose of the First Amendment, this argument suggests that the freedom of association (along with assembly and petition) is not merely derivative of the freedom of speech. Instead, the freedom of association deserves at least equal stature in its own right--and in some contexts enjoys primacy over the freedom of speech. Furthermore, this Article argues that one of the most important functions of free speech in our society, and in constitutional law, is to advance and protect the right of association, rather than purely the converse as the Supreme Court has suggested in recent years. (5) I call this form of speech "associational." Associational speech is speech that is meant to induce others to associate with the speaker, to strengthen existing associational bonds among individuals including the speaker, or to communicate an association's views to outsiders (including government officials). Such speech lies at the heart of the First Amendment's structural goals and plays a central role in many First Amendment controversies. Understanding the speech at issue in those situations in associational terms provides insight beyond that of traditional theory and doctrine because it helps explain why the courts have singled out certain specific forms of speech for particularly stringent constitutional protection. The purpose of this Article is to explain and defend this thesis and to explore its implications for free speech doctrine in a number of different areas.

The thesis propounded here neither claims to be an originalist account (if that is possible with respect to the First Amendment) nor presents associational speech as a grand theory explaining all facets of free speech law. Not all speech is associational, at least in a meaningful sense. Scientific talks and papers, mass media publications and broadcasts, commercial advertising, and published literature, for example, all have little or no associational element to them, yet are all clearly protected by the First Amendment. (6) Nonetheless, the concept of associational speech is important for several reasons. Most importantly, understanding the associational role of speech leads to a deeper understanding of the broad, structural functions of the First Amendment and, in particular, of how distinct provisions of the First Amendment interact to perform those structural functions. In addition, as the discussion in Part II demonstrates, the associational perspective gives important clarity to some very important areas of First Amendment law, helping to explain distinctions that the Supreme Court has drawn in the area of free speech that are not otherwise easily explicable.

Part I explores the development of the implicit right of association and the evolving relationship of that right with the free speech and assembly rights. It also discusses the relationship of assembly, petition, and association to self-governance and the modern scholarship on the historical roots of these rights. Part I then uses these insights to develop a theory of associational speech. Next, Part II explores the implications of this theory for various areas of free speech law. Finally, Part III explores some broader questions about what the theory of associational speech teaches us about the basic nature of free speech, as well as some of the limits to the concept of the associational speech.

1. ASSOCIATION AND SPEECH--A CONVOLUTED RELATIONSHIP

   To understand the relationship among free speech, association, and assembly, some background is necessary. To that end, this Part traces the doctrinal evolution of the First Amendment rights of association and assembly over the past century, as well as the historical roots and functions of those rights and the closely related right of petition. To begin with a clarification, the Supreme Court has over the years used the terms "association" and "assembly" interchangeably (even though assembly is mentioned in the constitutional text and association is not). Generally, however, the scholarship suggests that assembly was understood historically to refer to ad hoc gatherings of citizens, while association was understood to refer to more permanent citizen organizations, whether formally constituted or not. (7) How those rights came to be recognized and enforced in the Supreme Court is a complex tale, to which we now turn.

   1. Association and Assembly in the Supreme Court

      For the first 125 years of its history, the Free Speech Clause was essentially absent from the Supreme Court's jurisprudence. The reasons for this absence are many: first, prior to incorporation, most free speech controversies raised no federal constitutional issues, since state governments were the primary regulatory authorities; second, the Alien and Sedition Act controversy never reached the Supreme Court; and third, the Court itself took a notably narrow view of the scope of the Free Speech Clause. (8) Assembly and association cases were similarly absent from the Court prior to the twentieth century. The evolution of the assembly and associational rights in the Court began a few years after the birth of free speech jurisprudence in the 1919 Espionage Act cases, (9) with the Court's famous decision in Whitney v. California. (10)

      Whitney is generally cited as a free speech case; indeed, it is remembered as one of the classic triumvirate of free speech cases in which Justices Holmes and Brandeis, in separate opinions, formulated their "clear and present danger" test and developed their underlying theories of free speech. (11) Justice Brandeis's concurring opinion in Whitney famously expounded his self-governance rationale for protecting speech and has been described as perhaps the most important free speech opinion in the Supreme Court's history. (12) All of this is a bit odd, however, because Whitney was not a free speech case at all. It was a case about association and assembly. The case arose from the prosecution for criminal syndicalism of Anita Whitney, a leading California left-wing activist (and niece of Supreme Court Justice Stephen Field). The crux of the prosecution, however, was not that Whitney's speech constituted criminal syndicalism (which California law defined as the advocacy of crimes or violence to effect change in industrial ownership) but merely that she belonged to an organization, the Communist Labor Party, that engaged in syndicalism. Speech could not have been a basis for...