The right to freedom of expressive association and the press.

Author:Edgar, Christopher R.

INTRODUCTION I. THE LEGAL FORMULATION OF THE RIGHT TO EXPRESSIVE ASSOCIATION A. Expression Group 1. Unified message 2. Commercial vs. noncommercial B. Deterrent Effect II. THE PRESS AND CONTENT-NEUTRAL GOVERNMENTAL ACTION A. Cases in Which a Balancing Test Was Inappropriate B. Cases in Which a Balancing Test Would Have Been Appropriate 1. Statutory/regulatory prohibitions on group expressive activity 2. Discretionary governmental actions triggered by group expressive activity III. THE PRESS AND THE PARADIGM CASES A. The Discrimination Context B. The Disclosure Context CONCLUSION INTRODUCTION

Although courts often express reservations about defining "the press," (1) they are rarely reserved in their praise of the press as an institution. As is often said, the press serves the important functions of exposing political corruption and unresponsiveness to the electorate (2) and informing the public about the social and economic condition of the polity to promote more educated choices in the voting booth. (3) Its effective performance of these functions makes the press an institution well-suited to advancing the goals that the First Amendment, in the view of the judiciary, was designed to achieve: among others, the promotion of open debate on policy proposals to arrive at the best possible solutions to social problems, (4) the prevention of governmental control of the public through misinformation, (5) and the deterrence of corruption and malfeasance by governmental actors. (6) It is thus incongruous that courts have not historically afforded the press the protection of a key First Amendment doctrine: the right to freedom of expressive association.

The right to freedom of expressive association prohibits governmental actions (7) that have the effect of deterring persons from congregating in groups for the purpose of performing expressive activity. (8) This protection is essential to ensuring that a plurality of views reaches a wide audience, since individuals engaged in solitary expressive activity would have great difficulty making their opinions heard. By "expressive activity," I mean any activity afforded some degree of protection by the Speech Clause of the First Amendment, (9) which restrains governmental actors from making any law or taking any action "abridging the freedom of speech." (10) If an activity is protected by the Speech Clause, the First Amendment protects the people's right not only to engage in the activity but also to organize for the purpose of engaging in it. For example, just as the government cannot revoke a person's passport for advocating communism because such advocacy constitutes a protected expressive activity, so too the government cannot revoke a person's passport by virtue of his membership in the Communist Party. Such an action would violate his right to expressive association by penalizing him for associating with his fellow party members for the purpose of disseminating communist doctrines. (11) I will call a group of persons congregating for the purpose of engaging in expressive activity an "expressive group." (12) Prime examples of expressive groups in the Supreme Court's jurisprudence include political parties, (13) legal aid groups, (14) and nonprofit organizations dedicated to the improvement of their members' skills and character. (15)

Governmental actors rarely prohibit the activities of specific expressive groups outright. (16) More often, governmental actors harm expressive groups by passing content-neutral statutes--i.e., statutes not passed with the purpose of suppressing discussion of a particular subject matter or viewpoint (17)--that have the effect of imposing a cost on group expressive activities and hence deterring people from engaging in them. Governmental actors typically impose these burdens in one of three ways: (18) mandating that an expressive group admit a person it does not desire into its membership; (19) requiring that an expressive group disclose the identities of its members and affiliates, thus subjecting those persons to potential harassment and embarrassment; (20) and explicitly prohibiting or penalizing a given type of group expressive activity. (21)

When an expressive group proves that a governmental action has a deterrent effect upon its expressive activity, the courts employ a balancing test that weighs the social cost of burdening the group's expressive activity against the cost of prohibiting the government from doing what it seeks to do. (22) A social cost results if the government is permitted to hinder expressive groups' attempts to congregate, because the courts consider an organized group of speakers capable of disseminating a message in a more persuasive fashion and to a wider audience than the group's members would be capable of doing alone. (23) When such groups are less able to effectively disseminate their messages, the populace loses the benefit of the information and perspectives that the groups could have provided on issues of public importance. If the social cost of diminishing the ability of the members of the group to engage in effective expressive activity outweighs the social cost of prohibiting the government from taking the action it desires to take, the First Amendment bars the government from taking its preferred action.

As noted above, courts highly value the expressive activities of the press. (24) Thus, one would think that a governmental act that deterred the employees or affiliates of a press entity (i.e., an organization formed with the purpose of publicly disseminating information (25)) from banding together to engage in the collection and dissemination of news would be a clear case calling for the application of the freedom of association balancing test. Surprisingly, however, press litigants tend not to raise freedom of association claims when challenging content-neutral governmental acts that deter them from engaging in expressive association. (26) Instead, press litigants typically argue that the government is impairing their rights under the Press Clause of the First Amendment, (27) despite the fact that the courts have generally declined to infuse the Press Clause with legal content. (28) Moreover, even though press litigants do not tend to make freedom of association claims against content-neutral restrictions, one might reasonably expect the courts to refer to freedom of association jurisprudence when considering press entities' Press Clause-based claims against content-neutral governmental acts. After all, the courts have not historically imposed rigid boundaries between the various doctrines and causes of action the First Amendment provides. (29) However, courts have not traditionally referred to freedom of association jurisprudence when adjudicating Press Clause claims by media entities against content-neutral governmental actions. When press entities challenge governmental acts that allegedly deter the press from engaging in group expressive activity, the courts' typical response has been that the First Amendment does not afford the press any special immunity from content-neutral governmental actions. (30) Courts reject such challenges without applying the balancing test commonly associated with expressive association claims, i.e., without inquiring into the extent of the harm to the press entity involved and the harm that prohibiting the government from taking its preferred action would entail. (31)

In this Note, I will contend that the courts' refusal to apply a balancing test to First Amendment claims by the press against content-neutral laws is inconsistent with the Court's formulation of the right to freedom of expressive association in cases not involving press entities. Press entities are expressive groups, and thus they deserve the same right of expressive association that the courts have conferred on other organizations. (32) When a press entity challenges a content-neutral governmental action on the ground that such action impermissibly deters the entity from engaging in group expressive activity, courts should protect the press entity's freedom of association by balancing the public interest in hearing the speech of the press entity against the interest of the government in taking its preferred action. (33)

This Note will proceed in three Parts. Part I will describe in greater detail the criteria that First Amendment case law requires a party claiming the protection of the right to freedom of expressive association to meet in order to invalidate a governmental act. As I discuss further below, greater elucidation of the criteria a litigant must meet to prevail under the freedom of association doctrine is necessary--both because the scope of the doctrine is a highly contentious issue among courts and scholars, and because a close examination of existing law will answer many of the objections readers are likely to entertain to the notion that press entities should be afforded the protection of the doctrine. Part II will describe the courts' current approach to claims that content-neutral governmental actions abridge press entities' First Amendment rights by deterring expressive association. I will show that the courts have treated press entities differently from other expressive groups in similar factual situations. Finally, Part III will provide guidance regarding how the courts might apply the freedom of association doctrine to press entities' First Amendment claims in the future by describing paradigm cases in which the courts should afford press entities the doctrine's protection.


    The legal test courts employ to determine whether a particular governmental action infringes upon an expressive group's associational rights has evolved as follows. An expressive group claiming that its right of expressive association is being violated by a governmental action must meet three criteria. First, the claimant must show that it constitutes...

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