Freedom of Association and Assembly

AuthorJeffrey Lehman, Shirelle Phelps

Page 493

The right to associate with others for the purpose of engaging in constitutionally protected activities.

The right to associate is not an independent constitutional right but is derived from and dependent on the FIRST AMENDMENT guarantees of FREEDOM OF SPEECH and expression. It is protected only to the extent that it is asserted in conjunction with a First Amendment right. However, some legal scholars maintain that freedom of association is more fundamental than the rights enumerated in the Constitution because without it those other rights have little meaning.

One early case to recognize freedom of association was NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). In Patterson, the Supreme Court held that a lower court's order compelling the NAACP to disclose records containing the names and addresses of its Alabama members violated the group's right to associate freely. The Court recognized freedom of association as an adjunct to the NAACP's free speech rights and held that the freedom to associate for the advancement of beliefs and ideas is inseparable from the freedom of speech.

General types of association unrelated to First Amendment rights are not protected by the Constitution. For instance, in City of Dallas v. Stanglin, 490 U.S. 19, 109 S. Ct. 1591, 104 L. Ed. 2d 18 (1989), the Court held that a city ordinance limiting adult entrance into teenage dance halls did not violate the associational rights of either the adults or the minors. The association of adults and minors in a social setting does not fall within the purview of any rights protected by the First Amendment and therefore is not a constitutionally protected activity.

The activities of groups organized to pursue economic activity are sometimes protected if the individuals have come together to advance beliefs or ideas. Generally, the Court's decisions in this area depend on whether the economic activities are found to be sufficiently expressive to invoke First Amendment protection. In NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982), the NAACP was held not liable for economic damage suffered by merchants in a boycott it had sponsored. The boycott was a legal, nonviolent action against white merchants to pressure them to comply with CIVIL RIGHTS laws. The Court found that though clearly an economic activity, it was primarily designed to advance the NAACP's political beliefs in civil rights. This added purpose gave the boycott an expressive character sufficient to warrant First Amendment protection. On the other hand, an economic boycott that is not intended to express political ideas or beliefs is not protected under the First Amendment. In FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 110 S. Ct. 768, 107L. Ed. 2d 851 (1990), the Court found that a boycott organized by trial lawyers in an effort to secure increased compensation for their representation of indigent clients was a fundamentally economic activity that did not rise to the level of expressive conduct contemplated by the First Amendment.

Page 494

During the 1940s and 1950s, a number of cases tested the constitutionality of the Alien Registration Act (also known as the SMITH ACT) (18 U.S.C.A. § 2385), which makes it a crime to conspire to overthrow the government or promote doctrines that advocate SEDITION. The act was sometimes used to prosecute individuals merely for their membership in organizations suspected of...

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