First Amendment: Freedom of Association

Chapter 13

First Amendment: Freedom of Association

Freedom of association is not specifically enumerated by the First Amendment. The Supreme Court, however, has established this liberty as a fundamental incident of freedom of speech. It is a guarantee that is crucial to the ability of individuals to organize, mobilize, or affiliate on the basis of shared views. Freedom to associate thus derives its constitutional stature from an understanding that it is essential to full enjoyment of those guarantees actually specified by the First Amendment. Restrictions on associational freedom, as the Court recognized in NAACP v. Alabama (1958), have the potential to undermine the freedom of speech that the First Amendment contemplates and secures. Over the years, as evidenced by Roberts v. United States Jaycees (1984), the concept of freedom of association has expanded.

Roberts v. United States Jaycees

Citation: 468 U.S. 609.

Issue: Whether the constitutional right to freely associate gives the

United States Jaycees the right to exclude women from regular membership.

Year of Decision: 1984.

Outcome: The Jaycees do not have a constitutional right to exclude women.

Author of Opinion: Justice William Brennan.

Vote: 9-0.

Since the nation’s founding, citizens have “associated” for expressive and intimate purposes. Even though the United States Constitution does not explicitly mention or provide for a right of association, the United States Supreme Court has affirmed this right in numerous decisions. In an early decision, NAACP v. Alabama, 357 U.S. 449 (1958), the Court upheld the NAACP’s refusal to turn over its membership lists. The NAACP feared that those lists would be used to harass and intimidate its members, thereby impinging their right to freely associate. The Court upheld the NACCP’s right to refuse to turn over the lists.

Roberts is important because it helps define the outer limits of the right of association. That case involved the United States Jaycees (Jaycees), a nonprofit membership corporation, whose objective was to promote young men and young men’s organizations. While the Jaycees had various membership levels, “regular” membership was limited to men between the ages of 18 and 35. Women and older men could apply only for “associate” membership, which meant (among other things) that they could not vote. The Jaycees had approximately 295,000 members in 7,400 local chapters affiliated with 51 state organizations. Of those, only two percent were female associate members. The case arose when the Minneapolis and St. Paul Jaycees chapters began admitting women to regular membership. When the national Jaycees moved to revoke the chapter’s charters, the chapters responded by filing a complaint with the Minnesota Department of Human Rights charging a violation of the Minnesota Human Rights Act (“Act”). The Act made it illegal to deny “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin or sex.” The Minnesota Department of Human Rights concluded that the Jaycees provided a place of public accommodation and found a violation of the Act. The Jaycees challenged the determination in federal court as a violation of their constitutional rights of free speech and association.

In rejecting the Jaycees’ associational claim, the United States Supreme Court engaged in an extended discussion of the right. The Court noted that “freedom of association” cases contain two separate and distinct strands. The first strand is based on the concept of “personal liberty.” This strand gives individuals the freedom to choose their intimate human relationships and guarantees those relationships against state control or intrusion. The second strand derives from the First Amendment’s guarantee of the right to engage in speech and assembly, to petition for the redress of grievances, and to freely exercise religion. This strand of association is guaranteed “as an indispensable means of preserving other individual liberties.”