Associations, Parties, and Political Campaigns

• Pages: 237-257
• Author: Daniel A. Farber

237

Chapter 12

ASSOCIATIONS, PARTIES, AND

POLITICAL CAMPAIGNS

The previous chapter co nsidered the application of the First

Amendment to one type of group undertaking, the media. This

chapter considers more broadly the application of the First

Amendment to groups. We begin by exploring the basic right of

freedom of association and then turn to the crucial associations

known as political parties. We close with a discussion of campaign

financing, focusing particularly on the regulation of organizations

such as political action committees and corporations.

I. Freedom of Association

The final clause of the First Amendment prohibits laws

abridging “the right of the people peaceably to assemble and to

petition the government for a redress of grievances.” Ev en without

this textual anchor, it would be obvious that the First Amendment

must protect not merely individual speakers but also organized

activities, from political parties and media organizations to protest

committees and dissident groups. Effective speech often requires

more resources than a single individual can bring to bear, and

political impact often depends on numbers. Thus, the First

Amendment would lose much of its value if it protected only isolated

individuals but left the government a free hand to prevent organized

activity.

The argument for protecting freedom of association is strongest,

then, when the organization’s activities themselves are within the

scope of the First Amendment. In tracing the history of Fir st

Amendment doctrine relating to subversive speech in Chapter 4, we

witnessed the emergence of constitutional protection for political

association. The Co urt took steps in Scales and Noto to ensure that

individuals would not be subject to “guilt by association.” Even when

a group strays into unprotected criminal activities, individuals can

only be punished for intentional support for the group’s illegal

purpose. The ef fect is to create a safety buffer for individuals who

might otherwise be afraid to join dissident organizations for f ear of

being tainted by organizational actions they do not support.

Thus, the case for protecting freedom of association is s trongest

when the organization’s activities revolve around political speech. In

this section, however, we will focus on groups whose main purposes

are nonpolitical. In the next section, we will turn to political parties.

238

SPEECH IN SPECIAL SETTINGS

Pt. III

A. Regulating Group Membership

Most of the modern cases involving state regulation of group

membership arise in the context of state discrimination laws. Roberts

v. United States Jaycees

1

is illustrative. Two chapters of the Jaycees

were sanctioned by the national organization for violating a national

bylaw b arring women from joining. The local chapters filed a civil

rights complaint against the national organization under a state

anti-discrimination law. The national organization responded with a

federal lawsuit claiming that the state could not force it to accept

women as mem bers o f its local chapters. The Supreme Court held

that compelling the national organization to accept women would not

violate its constitutional rights.

Justice Brennan’s opinion for the Court distinguishes between

two different senses of freedom of association. One line of cases holds

that “choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the State

because of the role of such relationships in safeguard ing the

individual freedom that is central to our constitutional scheme.”

Brennan refers to this as the intrinsic feature of the right to

associate, since it involves protection of association for its own s ake.

Another line of cases recognizes a “right to associate for the purpose

of engaging in those activities protected by the First Amendment—

speech, assembly, petition for the redress of grievances, and the

exercise of religion.” Brennan refers to this as the instrumental

feature of association.

Regarding the intrinsic aspect of association, Justice Brennan

observed that human groups span a broad range from intimate

personal relationships such as families to multinational

corporations. Families involve “deep attachments and commitme nts

to the necessarily few other individu als with whom one shares not

only a special community of thoughts, experiences, and beliefs but

also distinctively personal aspects of one’s life.” Among the traits of

families are “relative smallness, a high degree of selectivity in

decisions to begin and maintain the affiliation, and seclusion from

others in critical aspects of the re lationship.” Generally, only

relationships with similar qualities are protected as intrinsic

associations, according to Brennan.

The Jaycees failed to qualify as an intrinsic organization. Except

for restrictions on gender and age, membership was completely

unselective, and local chapters had several hundred members. The

local chapters, which had the better claim to be considered intimate

1

468 U.S. 609 (1984).