Factions for the rest of us.

• Author: Inazu, John D.
• Position: Response to articles in this issue, p. 1375, 1381, 1403, 1423

I am grateful to Washington University School of Law for hosting the recent discussion on my book Liberty's Refuge: The Forgotten Freedom of Assembly. (1) had three objectives in writing Liberty's Refuge: one diagnostic, one historical, and one normative. The diagnosis highlights difficulties with the current doctrine of intimate and expressive association. (2) The history excavates the prominent role that the right of assembly occupies in our constitutional and popular past. (3) The normative theory contends that we ought to protect dissenting private groups even at the cost of stability and uniformity. (4) The introductory remarks by Professor Magarian and the three essays from Professors Bhagwat, Vischer, and Appleton address these objectives through generous engagement and thoughtful critique. (5) In the limited space of this response, I focus on six themes prompted by the commentators: expression, violence, relationality, power, funding, and commerciality.

1. EXPRESSION

   I am indebted to Professor Bhagwat for emphasizing how the contemporary significance of assembly extends beyond illiberal groups that resist antidiscrimination law. As Professor Vischer notes in his comments, I situated the doctrinal analysis in Liberty's Refuge in the Supreme Court's recent case law, which meant that I gave the greatest attention to the clash between group autonomy and antidiscrimination law. (6) While I continue to believe that exclusion is essential to expression and meaningful group autonomy, the principles of dissent and pluralism inherent in the right of assembly have far broader implications. (7) Professor Bhagwat highlights these broader principles in two important ways: by critiquing my reliance on expression and by exploring the boundaries of peaceable assembly. I address the first issue in this part and the second in the following part.

   Professor Bhagwat argues that "[a]ssembly should be protected not because it is expressive, but because it independently advances the goals of the First Amendment." (8) He suggests that my "focus on the expressive nature of group membership as the reason for its protection seems to abandon that insight, and once again make assembly the handmaiden of speech." (9) While I hope I have not abandoned assembly to speech, Professor Bhagwat rightly notes that my framing of the issues in Liberty's Refuge risks that misconception. My emphasis on the inherent expressiveness of assembly was an effort to critique the current doctrinal framework that purports to distinguish between "expressive" and "nonexpressive" associations. But the expressive potential of a group is not the reason that we value assembly. We value assembly because it facilitates dissent, self-governance, and the informal relationships that make politics possible. (10)

   Conversely, I do not mean for my critiques of expressive association and its companion, intimate association, to obscure the legitimate functions advanced by the kinds of groups that the Court means to protect through these categories. Intimacy and expressiveness are themselves instrumentally valuable to creating and fostering dissent and selfgovernance. (11) But constitutional categories like intimate and expressive association will inevitably capture only a subset of the groups that they are designed to protect because functional analyses like intimacy or expressiveness lend themselves to arbitrary judgments. Why, for example, is a family intimate but a college fraternity is not? (12) Or how are the Boy Scouts expressive but a motorcycle club is not? (13) Rather than resort to these politicized judgments, we ought to ensure that we are protecting groups whose First Amendment value and significance is contested, which means that we will inevitably overprotect some groups that most of us do not think further any legitimate constitutional purpose.

   This posture of overprotection should sound familiar--it is precisely what we do with our free speech doctrine. (14) Few people find redeeming social value in animal crush videos. (15) But we protect expression of this nature because we worry that drawing different lines would harm the values underlying the right to free speech. (16) We should have similar considerations in mind when it comes to the right of assembly.

2. VIOLENCE

   One of the central claims of Liberty's Refuge is that we ought to extend epistemic deference and interpretive charity to the internal practices of private groups. (17) I argue that we should adopt this posture to a much greater extent than current First Amendment doctrine permits. But I also identify a few limiting principles, including the textual limitation of peaceable assembly. (18) Professor Bhagwat rightly asks how we determine when an assembly crosses the threshold from peaceability to violence.

   Like Professor Bhagwat, I lack a clear sense of where the peaceability line ought to be drawn. But I think he and I agree where it ought not be drawn: the Supreme Court's 2010 decision in Holder v. Humanitarian Law Project. (19) That decision addressed a federal statute that prohibited "knowingly provid[ing] a foreign terrorist organization" with "material support or resources." (20) A group of U.S. citizens and associations challenged the statute's curtailment of their efforts to train members of two foreign groups "to use humanitarian and international law to peacefully resolve disputes," to "engage in political advocacy," and to teach members "how to petition various representative bodies such as the United Nations for relief." (21) The Court rejected the speech and association claims brought by these litigants. (22) In fact, as Justice Breyer noted in dissent, the government suggested during oral argument that the material support provision "prohibits a lawyer hired by a designated group from filing on behalf of that group an amicus brief before the United Nations or even before [the Supreme Court]." (23) That remarkable concession and the constitutional framework that enables it should not mark the boundaries of peaceable assembly. (24)

   But where then is the line? I am grateful for Professor Bhagwat's suggestion that Brandenburg's "imminent violence" standard that governs free speech law "may not translate easily into the area of assembly and association." (25) Professor Bhagwat argues that "there is something to the ... assertion that groups are more dangerous than individuals when it comes to advocacy of violence." (26) He asserts that the law recognizes this difference "most obviously in the fact that it does not require violence to be imminent (or even likely) before prosecuting a conspiracy planning specific acts of violence, even though a whole-hearted importation of Brandenburg into the assembly/association area would seem to impose such a requirement." (27)

   These observations call to mind the Madisonian notion of faction, which, prior to its reinterpretation at the hands of mid-twentieth century pluralism, recognized that dissenting groups were disruptive risks to be tolerated out of necessity, not harmonious spokes in a "balance wheel." (28) Factions remind us that dissenting groups are a double-edged sword: the greater protections that we afford to them, the greater risk of instability we may introduce to the polity. In the context of Professor Bhagwat's concern about violent assemblies, there may well be differences between groups and individuals. But I am not sure that these differences doom a Brandenburg-like standard for assembly. Conspiracy law aims at an agreement to commit an illegal act, and it is generally the agreement itself (and some overt act) that triggers liability, not the imminence of the target offense. This focus leaves criminal conspiracy outside of Brandenburg even under a free speech analysis. (29) Assemblies that are not criminal conspiracies may thus still be governable under a Brandenburg-like standard. (30)

   The potential disagreement between Professor Bhagwat and me about the precise contours of the differences between groups and individuals may also be a point at which he and I diverge on the level of political theory. Professor Bhagwat asserts that we "need to have faith in the basic strength and unity of our society." (31) I am not sure that I share that faith. I situated Liberty's Refuge within the spirit of the radical democratic theory of Sheldon Wolin. (32) I suggested that Wolin offers a kind of antidote to the stable political agreement envisioned in John Rawls's notion of an "overlapping consensus." (33) While I agree with Professor Bhagwat that some modicum of shared belief must hold us together, I argue that our politics reflects instability more than consensus.

3. RELATIONALITY

   Professors Appleton and Bhagwat both argue that I have misconstrued the doctrinal development of intimate association. Professor Appleton suggests that I am wrong to argue that Eisenstadt v. Baird is a case about individual autonomy rather than association. (34) She writes that "issues of contraception necessarily and inherently implicate association" and that "the right to privacy--as defined by the Court in Eisenstadt--cannot be 'detached' from the right of association." (35) Professor Bhagwat contends that the majority opinion in Lawrence v. Texas asserts that "the Due Process Clause protects liberty, in the form of sexual activity, precisely because that activity is a central aspect of an intimate personal bond." (36) He suggests that "[f]ar from abandoning intimate association, the Court's opinion [in Lawrence] seems to whole-heartedly endorse the concept, placing it at the very center of the Court's 'privacy' jurisprudence." (37)

   I argue in Liberty's Refuge that the concept of intimate association originally rooted in associational privacy became resituated in a jurisprudence of individual autonomy. (38) The most important development in that shift unfolded between Justice Douglas's opinion in Griswold v. Connecticut and Justice Brennan's opinion...