Chapter 1. Overview of the Argument
1. Abraham Lincoln, Uncollected Letters of Abraham Lincoln, ed. Gilbert A. Tracy (New York: Houghton Mifflin, 1917), 127. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 53. Rawls usually refers to association rather than assembly in his later work. See, e.g., John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 221 n.8, 291, 338, 418. But see ibid., 335 (mentioning assembly). Franklin Roosevelt’s well-known four freedoms were preceded by a different “four freedoms” (speech, press, religion, and assembly) that captured the popular press, headlined the 1939 New York World’s Fair, and formed the core of nationwide celebrations of the sesquicentennial anniversary of the Bill of Rights.
2. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).
3. Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), xi (“Before Dale, there was a well-settled law of freedom of association. Dale has disrupted that law, capriciously and destructively. This book is a plea for the restoration of the ancien regime.”). I take Koppelman’s claim to be that Boy Scouts of America v. Dale, 530 U.S. 640 (2000), disrupted the framework first set in place sixteen years earlier in Roberts v. United States Jaycees, 468 U.S. 609 (1984). Koppelman acknowledges the “germinal case” of the right of association in NAACP v. Alabama, 357 U.S. 449 (1958), see Koppelman, A Right to Discriminate? 18–22, but it is clear that Roberts rather than NAACP v. Alabama does most of the work that he wants to embrace as the “well-settled law of freedom of association.” Although A Right to Discriminate? lists its authors as “Andrew Koppelman with Tobias Barrington Wolff,” I will refer only to Koppelman for ease of reference and because most of the arguments with which I engage flow out of earlier publications that Koppelman wrote exclusively. For examples of political theorists who implicitly or explicitly endorse the idea of expressive association, see Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Oxford University Press, 1990); Amy Gutmann, ed., Freedom of Association (Princeton: Princeton University Press, 1998); Rawls, Political Liberalism. For examples of constitutional arguments that rely upon the concept, see Brief for Petitioner at 2, Christian Legal Society v. Martinez, No. 08–1371 (Jan. 2010) (arguing that the Christian Legal Society is an expressive association); Brief for Petitioner at 32, Boy Scouts of America v. Dale, No. 99–699 (Feb. 28, 2000) (arguing that the Boy Scouts is an expressive association).
4. The claim about intelligibility is not meant to be universal. Some gatherings may present a relatively coherent message absent any shared practices or history. A group of strangers that meets in front of a prison to protest an execution is one example.
5. The example of the gay social club is taken from Brief of Gays and Lesbians for Individual Liberty as Amicus Curiae in Support of Petitioner at 11 Christian Legal Society v. Martinez, No. 08–1371 (Feb. 4, 2010) (noting that gay organizations “have relied on exclusively gay environments in which to feel safe, to build relationships, and to develop political strategy,” including “many exclusively gay social and activity clubs, retreats, vacations, and professional organizations”). The prayer or meditation group is likely “nonexpressive” under the Court’s doctrine of expressive association if its only verbal and symbolic expression is among its members and to its deity. To the extent that prayer qualifies as the free exercise of religion, it is unlikely to find constitutional protection in the rational basis scrutiny afforded general laws of neutral applicability under the test announced in Employment Division v. Smith, 494 U.S. 872 (1990). The example of the college fraternity comes from Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 443 F.Supp. 2d 374, 376 (2006) (concluding that Chi Iota had not shown a clear or substantial likelihood of success on its expressive association claim), rev’d on other grounds by Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136 (2007). Each of these groups is presumably a nonexpressive, nonintimate association.
6. Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir. 2008). See also Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984) (all-male expressive association denied constitutional protections), Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (same); Christian Legal Society v. Kane, No. C04–04484, May 19, 2006, at *20 (relying on Kent to deny expressive association claim of religious student group), affirmed on other grounds by Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).
7. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). I have located at least twenty-five federal district and appellate court opinions referring to a “freedom of association” clause in the United States Constitution. See, e.g., Swanson v. City of Bruce, 105 Fed. Appx. 540, 542 (5th Cir. 2004) (unpublished opinion) (referring to “the freedom of association clause”); Boyle v. County of Allegheny, 139 F.3d 386, 394 (3d Cir. 1998) (asserting that the plurality opinion in Elrod v. Burns, 427 U.S. 247 (1976) “held that the discharge of a government employee because of his political affiliation violates the freedom of association clause of the First Amendment”); Darnell v. Campbell County Fiscal Court, 924 F.2d 1057 (6th Cir. 1991) (unpublished opinion) (discussing the requirements for a prima facie case under “the freedom of association clause of the first amendment”); Grace United Methodist Church v. City of Cheyenne, 427 F.Supp. 2d 1186, 1203 (D. Wyo. 2006) (“The First Amendment’s Free Speech Clause and Freedom of Association Clauses apply to the states through the Fourteenth Amendment.”); Hyman v. City of Louisville, 132 F.Supp. 2d 528, 543 (W.D. Ky. 2001) (“The Supreme Court has interpreted the First Amendment to provide little protection under the Freedom of Association Clause to commercial enterprises.”).
8. I originally described the inherently political nature of assembly as “public.” See John D. Inazu, “The Forgotten Freedom of Assembly,” 84 Tulane Law Review 565, 570 (2010) (describing “the dissenting assembly, the public assembly, and the expressive assembly”). My initial use of “public” rather than “political” was an effort to avoid confusion over conventional understandings of “political” confined to the state’s governance and attempts to influence it through groups like parties and lobbying organizations. I have since realized that the interminable debates over the boundaries of “public” and “private” make “public” in this context even more ambiguous than “political.” Accordingly, I refer to the latter in this book. The underlying claim remains the same: “claims of assembly have been public claims that advocate for a visible political space distinguishable from government.” Ibid.
9. C. Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989), 134.
10. Robert Putnam’s seminal work captures much of the texture of assembly that I am suggesting. See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Schuster, 2000). For related arguments, see generally, Alasdair C. MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame Press, 1981); Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.: Harvard University Press, 1989); Michael J. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1998). See also Richard W. Garnett, “The Story of Henry Adams’s Soul: Education and the Expression of Associations,” 85 Minnesota Law Review 1841, 1846 (2001) (describing “the indivisible process of acquiring beliefs, premises, and dispositions that are our windows on the world, that mediate and filter our experience of it, and that govern our evaluation and judgment of it”); Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space between Person and State (New York: Cambridge University Press, 2010), 3 (describing “the relational dimension of conscience”). My arguments also share some affinities with Ethan Leib’s work on friendship. See Ethan J. Leib, “Friendship and the Law,” 54 UCLA Law Review 631–708 (2007). Among other salient observations, Leib highlights the importance of friendship to “keeping the private sphere private” and as a means of resistance to and “freedom from” the state. Ibid., 663–67, 674–80. It is possible that the Court’s category of “intimate association” is meant to further similar aims. But as I explain in Chapter 4, the problem with intimate association is its artificial drawing of lines between “intimate” and “nonintimate” groups, both of which can embody the social vision that I ascribe to assembly.
11. Cf. Christian Legal Society v. Walker, 453 F.3d 853, 863 (7th Cir. 2006) (“Forcing [the Christian Legal Society] to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist.”); Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America (Grand Rapids: Eerdmans, 1984), 142 (“When an institution that is voluntary in membership cannot define the conditions of belonging, that institution in fact ceases to exist.”). In Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Court upheld Hastings College of the Law’s refusal to recognize a student chapter of the Christian Legal Society because that group refused to allow non-Christians and those who affirmed homosexual conduct to become group members and leaders. In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), the Court addressed a federal statute that prohibited “knowingly provid[ing] a foreign terrorist organization” with “material support or resources.” 18 U.S.C. § 2339A(b)(1). The statute defined “material support or resources” to include, among other things, “training,” “expert advice or assistance,” “personnel,” and “service.” Ibid., §§ 2339B(a)(1), g(4). A group of United States citizens and associations challenged the application of the statute to their support of two groups, the Kurdistan Workers’ Party (also known as the Partiya Karkeran Kurdistan, or PKK), which sought to establish an independent Kurdish state in southeastern Turkey, and the Liberation Tigers of Tamil Eelam (LTTE), which sought to create an independent Tamil state in Sri Lanka. Holder, 561 U.S. at *3. Specifically, they desired to “(1) train members of the PKK on how to use humanitarian and international law to peacefully resolve disputes; (2) engage in political advocacy on behalf of Kurds who live in Turkey; (3) teach PKK members how to petition various representative bodies such as the United Nations for relief; and (4) engage in political advocacy on behalf of Tamils who live in Sri Lanka.” Ibid., *2 (Breyer, J., dissenting) (internal quotation marks omitted). The government suggested that the statute “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 United States Supreme Court].” Ibid., *11 (citing Tr. of Oral Arg. 47–49, 53).
12. Stephen L. Carter, “Liberal Hegemony and Religious Resistance: An Essay on Legal Theory,” in Christian Perspectives on Legal Thought, ed. Michael W. McConnell, Robert F. Cochran Jr., and Angela C. Carmella (New Haven: Yale University Press, 2001), 33. See also Michael W. McConnell, “The New Establishmentarianism,” 75 Chicago-Kent Law Review 453, 466 (2000) (“Genuine pluralism requires group difference, and maintenance of group difference requires that groups have the freedom to exclude, as well as the freedom to dissent. Freedom of association is an essential structural principle in a liberal society.”).
13. William N. Eskridge Jr., “A Jurisprudence of ‘Coming Out’: Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law,” 106 Yale Law Journal 2411, 2415 (1997). See also David A. J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy (New York: Cambridge University Press, 2010), 13 (“The best of American constitutional law rests, I have come to believe, on the role it accords resisting voice, and the worst on the repression of such voice.”); Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale Law Journal 629, 688 (1980) (“One of the points of any freedom of association must be to let people make their own definitions of community.”); Roberts v. United States Jaycees, 468 U.S. 609, 633 (1984) (O’Connor, J., concurring) (“Protection of the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.”).
14. Akhil R. Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 246.
15. The Court incorporated the assembly clause in De Jonge v. Oregon, 299 U.S. 353 (1937). Subsequent cases arising shortly after De Jonge included Herndon v. Lowry, 301 U.S. 242 (1937), Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), and Thomas v. Collins, 323 U.S. 516 (1945). The last time the Court applied the constitutional right of assembly appears to have been in NAACP v. Claiborne Hardware Co., 458 U.S. 88 (1982)— thirty years ago. A majority opinion of the Supreme Court has only mentioned the right of assembly six times in the past twenty years. The language of assembly appears in the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc, et seq. (limiting government restrictions on “the religious exercise of a person, including a religious assembly or institution”).
16. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); Roberts v. United States Jaycees, 468 U.S. 609 (1984).
17. Mark DeWolfe Howe, “The Supreme Court, 1952 Term—Foreword: Political Theory and the Nature of Liberty,” 67 Harvard Law Review 91–92 (1953) (describing “the heart of the pluralistic thesis” advanced by Gierke, Maitland, Figgis, and Laski); Arthur Bentley, The Process of Government (Chicago: University of Chicago Press, 1908); Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt, 1955).
18. Griswold v. Connecticut, 381 U.S. 479 (1965).
19. See Ronald Dworkin, Freedom’s Law (New York: Oxford University Press, 1996) (rights as trumps); John Rawls, “The Idea of Public Reason Revisited,” 64 Chicago Law Review 765 (1997) (public reason); Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Belknap Press of Harvard University Press, 1986) (law as integrity). I recognize that I am making a critical and perhaps controversial interpretation of Dworkin. For examples of others seeing similarities between the constraining effects of Rawls’s public reason and Dworkin’s law as integrity, see Paul F. Campos, “Secular Fundamentalism,” 94 Columbia Law Review 1826–27 (1994) (“Law as integrity parallels the idea of public reason legitimating the exercise of coercive state power ‘in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.’”); Edward J. McCaffery, “Ronald Dworkin, Inside-Out,” 85 California Law Review 1057 (1997) (“Dworkin’s method can be understood as a form of public reason in the law.”); George Rutherglen, “Private Law and Public Reason,” 92 Virginia Law Review 1511 (2006) (“Dworkin would not have to modify much of his legal or political theory to limit the range of political discourse to what Rawls recognizes as reasonable.”); Martin Shapiro, “Fathers and Sons: The Court, the Commentators, and the Search for Values,” in The Burger Court: The Counter-Revolution That Wasn’t, ed. Vincent Blasi (New Haven: Yale University Press, 1983), 224 (noting that “Rawls has given us a revived social contract theory that manages to render equality rather than freedom the central operating tenet of the contract” and “Dworkin is in the process of attempting to demonstrate that equality ought to be the central principle from which constitutional and other legal rules are to be deduced.”). Dworkin himself has resisted comparisons between law as integrity and Rawlsian public reason, arguing recently that he has “great difficulties” with Rawls’s distinction “between political values on the one hand and comprehensive moral convictions on the other.” Ronald Dworkin, Justice in Robes (Cambridge, Mass.: Belknap Press of Harvard University Press, 2006), 253.
20. Roberts v. United States Jaycees, 468 U.S., 609, 618 (1984); Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
21. Martha Minow, “Introduction,” in Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1992), 8 (describing the views of Robert Cover).
22. Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton: Princeton University Press, 1998), 37.
23. William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (New York: Cambridge University Press, 2002), 3. Isaiah Berlin, Four Essays on Liberty (New York: Oxford University Press, 1969).
24. Cf. Alasdair C. MacIntyre, Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988). See also MacIntyre, After Virtue; Taylor, Sources of the Self; Sandel, Liberalism and the Limits of Justice.
25. For examples from classical liberalism, see John Locke, A Letter Concerning Toleration (1689); John Stuart Mill, On Liberty (1859) (insisting upon “freedom to unite, for any purpose not involving harm to others.”). The best-known libertarian account is Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). See also Chandran Kukathas, The Liberal Archipelago (New York: Oxford University Press, 2003), 133. Kukathas doesn’t rely on Nozick but instead constructs a kind of “group libertarianism.”
26. Koppelman, A Right to Discriminate? xii. See, e.g., Richard A. Epstein, “Should Antidiscrimination Laws Limit Freedom of Association? The Dangerous Allure of Human Rights Legislation,” 25 Social Philosophy and Policy 123 (2008).
27. Koppelman, A Right to Discriminate? 5, 6.
28. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (Berkeley: University of California Press, 1969), 55, quoted in Steven G. Calabresi, “Political Parties as Mediating Institutions,” 61 University of Chicago Law Review 1489 (1994). See also John Howard Yoder, “Response of an Amateur History and a Religious Citizen,” 7 Journal of Law and Religion 417 (1989) (“The very term ‘Bill of Rights’ was borrowed from British history. No one in the colonies in the 1770s thought that the new thing they were doing was independent of the changes which had begun in Great Britain since the early 1600s. There was a long British Puritan history, from the age of Milton to the 1689 Bill of Rights, in the course of which the civil freedoms of speech, press, and assembly arose out of religious agitation, not the other way around.”); Michael W. McConnell, “The Problem of Singling out Religion,” 50 DePaul Law Review 16 (2000) (“The struggle for the freedom to publish religious tracts was a precursor to the struggle for the freedom of the press more generally, as the freedom to gather together for purposes of religious worship was for the freedom of assembly.”). For more on the contemporary relevance of Williams and Penn, see John D. Inazu, “Between Liberalism and Theocracy,” 33 Campbell Law Review 591 (2011).
29. See especially, Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, 2004).
30. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
31. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”); Green v. County School Board, 391 U.S. 430, 435–38 (1968) (holding that a school district may be declared unitary and lacking racial discrimination based on satisfactory performance in five areas of a school district’s operations); Northwest Austin Municipal Util. Dist. No. One v. Holder 129 S. Ct. 2504 (2009) (“More than 40 years ago, this Court concluded that ‘exceptional conditions’ prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (plurality opinion) (“In the absence of particularized findings, a court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future”); Freeman v. Pitts, 503 U.S. 467, 491–92 (1992) (“With the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish”).
32. The limitations inherent in the right of assembly are similar to those found in the free exercise of religion. A religious group that used its freedom to establish a theocracy would undermine the principles of the free exercise of religion (quite apart from establishment clause concerns). The relationship between the right of assembly and the religion clauses of the First Amendment is a yet unexplored dimension of constitutional law that might shed some light on the troubled jurisprudence surrounding “church-state” issues. For some very tentative thoughts along these lines, see Inazu, “Between Liberalism and Theocracy.”
33. Koppelman, A Right to Discriminate? xiii.
34. See Terry v. Adams, 345 U.S. 461.
35. Steven G. Calabresi, “Political Parties as Mediating Institutions,” 61 University of Chicago Law Review 1490 (1994). Howard Dickman suggests that the Wagner Act “created a hybrid social organization, private in origin but exercising public power over individual rights; the majority union became something akin to a private government, a legally created ‘state within the state.’ ” Howard Dickman, Industrial Democracy in America: Ideological Origins of National Labor Relations Policy (La Salle: Open Court, 1987), 283, quoted in Paul Moreno, “Organized Labor and American Law: From Freedom of Association to Compulsory Unionism,” 25 Social Philosophy and Policy 49 (2008). On the right of “political association,” see Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); Clingman v. Beaver, 544 U.S. 581 (2005). On labor unions and the right of association, see, e.g., Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory (New Haven: Yale University Press, 1992); Reuel E. Schiller, “From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning of Union Strength,” 20 Berkeley Journal of Employment and Labor Law 1 (1999). Schiller contends that mid-twentieth-century liberalism buttressed union rights at the expense of individual liberties but that “as the theory of interest-group pluralism declined in the early 1960s, labor law changed, reflecting that decline.” Ibid., 4–5. Moreno writes that “American law has never denied organized labor’s freedom of association.” Moreno, “Organized Labor,” 24. On the complicated relationship between the right of association and political parties, see, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000). For a general critique of the application of expressive association to political parties, see Samuel Issacharoff, “Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition,” 101 Columbia Law Review 274 (2001).
36. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 27. See also Gregory P. Magarian, “The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate” 73 George Washington Law Review 101 (2004).
37. Robert Cover, “Nomos and Narrative,” 97 Harvard Law Review 1, 10 (1983).
38. Philip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1984) (discussing six “modalities” of constitutional argument: textual, structural, prudential, historical, precedential, and ethical); MacIntyre, After Virtue; MacIntyre, Whose Justice? Which Rationality? For an example of the kind of interpretive approach to which I am sympathetic, see H. Jefferson Powell, The Moral Tradition of American Constitutionalism (Durham: Duke University Press, 1993).
39. Cover, “Nomos and Narrative,” 53.
Chapter 2. The Right Peaceably to Assemble
1. In highlighting the characteristic of dissent, I do not mean to suggest that all assemblies are dissenting. But as a constitutional matter, the assemblies whose boundaries and existence are most vulnerable to challenge are precisely those that dissent from consensus norms. Assemblies that do not annoy or offend those in power usually have little to fear from the state.
2. Caleb Nelson cautions against placing too much reliance on punctuation in the Constitution because at the time of the founding “punctuation marks [were] thought to lack the legal status of words.” Caleb Nelson, “Preemption,” 86 Virginia Law Review 225, 258 (2000). He notes that “[t]he ratification of the Constitution by the states reflects this relatively casual attitude toward punctuation” because many states that incorporated a copy of the Constitution in the official form of ratification varied its punctuation.” Ibid., 259, n.102. Nelson cites as an example the copy of the Constitution in the Pennsylvania form of ratification, which used “different punctuation marks than the Constitution engrossed at the Federal Convention” in roughly thirty-five places. Ibid. My approach to the text, debates, and context of the assembly clause of the First Amendment has benefited from Michael Curtis’s observations about history and method. See Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986), 9 (“We may seek from history more than history can provide. The fact that the likely intent of the framers of a constitutional provision (narrowly read) may provide one form of legitimacy does not mean that it provides the only form. Still, appeal to historically existing common values is one characteristic of a community. Where valid, the appeal should not be discarded simply because the method may not answer all possible questions correctly from the critic’s point of view.”).
3. Neil H. Cogan, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), 129, 140. Willi Paul Adams has argued that the bills of rights and constitutions that arose from the states “did not reach a definition of the common good that resolved the ambiguities inherent in the concept as it was developed in the decade prior to 1776. The common good and the sum of private interests were seen as synonymous, and the possibility of conflict between them was belittled.” Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of State Constitutions in the Revolutionary Era (New York: Rowan and Littlefield, 2001), 221.
4. Congressional Register, August 15, 1789, vol. 2, quoted in Cogan, Complete Bill of Rights, 145. Cf. Melvin Rishe, “Freedom of Assembly,” 15 DePaul Law Review 317, 337 (1965) (“Were the courts truly bound to delve into whether or not an assembly served the common good, it is likely that many assemblies that have been held to be protected by the constitution would lose this protection.”).
5. Congressional Register, August 15, 1789, vol. 2, quoted in Cogan, Complete Bill of Rights, 143. This version also changed the semicolon after “common good” to a comma. The motion to strike is reported in Senate Journal (1st Congress) (September 3, 1789), 70. The following day the Senate adopted similar language: “That Congress shall make no law abridging the freedom of speech, or of the press, or the [r]ight of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” Ibid., September 4, 1789, 71. The merged text read: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and petition to the government for the redress of grievances.” Ibid., September 9, 1789, 77. The amendment took its final form on September 24, 1789: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Cogan, Complete Bill of Rights, 136. A number of state constitutional provisions retained references to the common good. See George P. Smith, “The Development of the Right of Assembly: A Current Socio-Legal Investigation,” 9 William and Mary Law Review 359 (1967) (cataloging state constitution assembly clauses).
6. Jason Mazzone, “Freedom’s Associations,” 77 Washington Law Review 639, 712–13 (2002). But see Akhil R. Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press, 1998), 26 (referring to assembly and petition as separate clauses); William W. Van Alystyne, First Amendment: Cases and Materials (Westbury: Foundation Press, 1995), 32 (referring to a distinct “‘peaceably to assemble’ clause”); James E. Leahy, The First Amendment: 1791–1991: Two Hundred Years of Freedom (Jefferson: McFarland, 1991), 202 (“The final wording of the First Amendment indicates that the first Congress intended to protect the right of the people to assemble for whatever purposes and at the same time to be assured of a separate right to petition the government if they chose to do so.”). The only other recent article to address the history of the right of assembly is Tabatha Abu El-Haj, “The Neglected Right of Assembly,” 56 UCLA Law Review 543 (2009).
7. Cogan, Complete Bill of Rights, 143. The earlier version derived in turn from Madison’s draft. Ibid., 129. Mazzone recognizes that “in Madison’s draft, assembly is separated from petitioning by a semi-colon, perhaps indicating that while the right of assembly is related to the right of petition, assembly is not necessarily limited to formulating petitions.” Mazzone, “Freedom’s Associations,” 715 n.409. Mazzone addresses the comma in a footnote and argues that because it “mirrors the comma” preceding the words “or prohibit the free exercise thereof ” in the first half of the First Amendment, “it does not therefore signal a right of petition separate from the right of assembly.” Ibid., 713 n.392. The argument for textual parallelism doesn’t hold because the free exercise clause explicitly refers back to “religion” (before the comma) with the word “thereof.” A closer parallel—which illustrates the problem with Mazzone’s interpretation—is the suggestion that the comma separating speech and press connotes that they embody only a singular freedom. My quibbles with Mazzone do not diminish my appreciation for his work. He is one of the few scholars in recent years to notice the relationship between assembly and association, and his thoughtful article posits a number of ideas with which I am highly sympathetic. See, e.g., ibid., 646 (arguing that assembly and petition provide “a much firmer constitutional basis for protecting the rights of citizens to come together in collective activities” than “expressive association”).
8. Cogan, Complete Bill of Rights, 144 (quoting Congressional Register, August 15, 1789, vol. 2); Irving Brant, The Bill of Rights: Its Origin and Meaning (Indianapolis: Bobbs-Merrill, 1965).
9. The Conventicle Act is 16 Charles II c. 4 (1664). The act was renewed in 1667 and again in 1670. William Dixon, William Penn: An Historical Biography (Philadelphia: Blanchard and Lea, 1851), 75, 76. In 1715, an “Act for preventing Tumults and riotous Assemblies” made it a felony if twelve or more people unlawfully assembled failed to disperse within an hour after authorities read a proclamation. Smith, “The Development of the Right of Assembly,” 363 n.22. On Penn’s trial, see Brant, Bill of Rights, 56, 57, 61. Penn and Mead were fined for contempt of court for wearing their hats after being ordered by an officer of the court to put them on. In addition to its pronouncement on the right of assembly, the case became an important precedent for the independence of juries. Following their verdict of acquittal, the trial judge had imprisoned the jurors, who were later vindicated in habeas corpus proceedings. Ibid.
10. Cogan, Complete Bill of Rights, 145 (quoting Congressional Register, August 15, 1789, vol. 2). The final text read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Ibid., 136.
11. Robert M. Chesney, “Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic,” 82 University of North Carolina Law Review, 1525, 1536 n.46 (2004). Mazzone also highlights the importance of the Democratic-Republican Societies to early interpretations of assembly and association. Mazzone, “Freedom’s Associations,” 734–42.
12. Philip S. Foner, The Democratic-Republican Societies, 1790–1800 (A Documentary Sourcebook) (Westport, Conn.: Greenwood Press, 1976), 6, 7. Foner, Democratic-Republican Societies, 7; Chesney, “Democratic-Republican Societies,” 1538 n.54; Eugene Link, Democratic-Republican Societies, 1790–1800 (Morningside Heights, N.Y.: Columbia University Press, 1942), 71–74. The term “Democratic-Republican Societies” comes from historians. Chesney, “Democratic-Republican Societies,” 1527 n.5. Although the exact number is disputed, there were probably around forty societies. Ibid., 1537 n.52.
13. Foner, Democratic-Republican Societies, 11; ibid. (quoting North-Carolina Gazette (New Bern), April 19, 1974); ibid., 25 (quoting Independent Chronicle (Boston), January 16, 1794) (original emphasis); ibid., 393 (quoting “Resolution Adopted Upholding the Cause of France,” South Carolina State Gazette (April 29, 1794)).
14. Foner, Democratic-Republican Societies, 10; Chesney, “Democratic-Republican Societies,” 1539; Simon P. Newman, Parades and the Politics of the Street: Festive Culture in the Early American Republic (Philadephia: University of Pennsylvania Press, 1997), 2, 3. These rituals were “vital elements of political life” practiced by ordinary Americans in the early Republic. Ibid., 5. While Newman cautions that some participants may have been interested only in “the festive aspects of public occasions and holidays,” he writes that it was “all but impossible for these people, whatever their original motives for taking part, to avoid making public political statements by and through their participation: both their presence and their participation involve some degree of politicization and an expression of political identity and power in a public setting.” Ibid., 8–9. El-Haj notes “the centrality of large gatherings of people in public places as part of the election festivities—to eat, drink, and parade and by implication to affirm their role as participants in the new nation.” El Haj, “The Neglected Right of Assembly,” 555.
15. Newman, Parades and the Politics of the Street, 3, 120, 122, 128–29. It is important not to overstate these societies’ egalitarianism: their officers were “virtually without exception men of considerable substance.” Eric McKitrick and Stanley Elkins, The Age of Federalism (New York: Oxford University Press, 1993), 458.
16. Chesney, “Democratic-Republican Societies,” 1546, 1557; ibid., 1526 (quoting Letter from President George Washington to Burges Ball (September 25, 1794)); ibid., 1559 (quoting Letter from President George Washington to Governor Henry Lee (August 26, 1794)); Annals of Congress, vol. 4 (1794), 788 (Statement of President George Washington); Chesney, “Democratic-Republican Societies,” 1558 (not ordinary political criticism); Irving Brant, James Madison: Father of the Constitution, 1787–1800 (Indianapolis: Bobbs-Merrill, 1950), 417.
17. Chesney, “Democratic-Republican Societies,” 1563; Annals of Congress, vol. 4 (1794), 934 (Statement of Representative Madison).
18. Foner, Democratic-Republican Societies, 33; ibid., 34 (quoting New York Journal, January 17, 1795); ibid., 327 (quoting James McCullough, “The Patriotic Society of New-Castle county, in the State of Delaware, To the Patriotic Societies throughout the United States” (undated)). See also James McCullough, “The Address of the Patriotic Society of the County of Newcastle, State of Delaware: To the People of the United States of America” (January 8, 1795), in Foner, Democratic-Republican Societies, 333 (“All we mean is simply to assert, that any individual citizen (and of consequence a society which is a collection of individuals) can never be blamed for a constitutional resistance to a law, which he believes from the bottom of his heart to be a bad one; and that if in consequence of his constitutional resistance, any unfortunate event should follow, the [burden] of the blame should lay upon the shoulders of that legislature who passed it, rather than on him, if it must rest upon either.”).
19. Foner, Democratic-Republican Societies, 40. See also Chesney, “Democratic-Republican Societies,” 1526.
20. Benjamin L. Oliver, The Rights of an American Citizen (1832), 187 (emphasis omitted). Oliver limited his conception of assembly to discussions of “public measures.” Ibid., 95. His lukewarm description warned that assemblies “called on the most unexceptionable business,” and serve “chiefly as occasions for haranguing the people, and exciting their passions by loud and florid declamation, delivered with the regulated and precise gesture of the academy, and with all the generous and glowing ardor of holiday patriotism” but are nevertheless “a great improvement on the affrays, tumults, riots and public disturbances, which in many countries invariably attend numerous and irregular assemblies of the people.” Ibid.
21. Francis Lieber, Manual of Political Ethics: Designed Chiefly for the Use of Colleges and Students of Law (2d ed. 1881), vol. 2, 295; ibid., 468–69. Lieber refers to “public meetings” at 471.
22. Leavitt v. Truair, 13 Pick. 111, 113, 30 Mass. 111, 113 (Mass. 1832) (emphasis added). At the time, Massachusetts required state support for sectarian religion. See, e.g., Oakes v. Hill, 10 Pick. 333, 351, 27 Mass. 333, 351 (Mass. 1830) (“A religious establishment and public worship ought to be maintained by legal coercion” and “the religion thus to be established and supported ought to be not only Christianity, but the Protestant Christian religion.”). As of the Statute of 1823, the state exempted from taxation and membership anyone who could “[show] himself to be a member of some other religious society.” Ibid., 351.
23. First Parish in Sudbury v. Stearns, 21 Pick. 148, 153, 38 Mass. 148, 153 (Mass. 1838). The opinion stressed that the society at issue was a poll parish rather than a territorial parish, which was “all voluntary and optional.” Ibid. Unlike a territorial parish that drew its membership from within territorial limits, a poll parish “only incorporates as members those particular individuals who may voluntarily unite with the society.” Taylor v. Edson, 58 Mass. 522, 527 (Mass. 1849).
24. Petition to the General Assembly of the State of North Carolina (November 24, 1818), microformed on Race, Slavery, and Free Blacks: Petitions to Southern Legislatures, 1777– 1867, PAR 11281803 (University Publications of America, 1998); Petition to the General Assembly of the State of North Carolina (December 3, 1858), microformed on Race, Slavery, and Free Blacks, PAR 11285802; Petition to South Carolina General Assembly (circa 1820), microformed on Race, Slavery, and Free Blacks, PAR 11382008; Petition to the Senate and House of Representatives of the State of Mississippi (circa 1852), microformed on Race, Slavery, and Free Blacks, PAR 11085201. For examples from Virginia and Delaware, see, e.g., Petition to the General Assembly of Virginia (December 21, 1859), microformed on Race, Slavery, and Free Blacks, PAR 11685902 (asserting “two existing widespread evils” in relationships with slaves and free negroes); Petition to the Senate and House of Representatives of the State of Delaware in General Assembly (January 26, 1847), microformed on Race, Slavery, and Free Blacks, PAR 10384703 (white citizens are “greatly annoyed by the assemblages of Negroes and others in the streets of said town of Milford after night and on Sabbath days using all manner of profane language yelling and bawling, boxing, wrestling fighting.”).
25. William Goodell, The American Slave Code (New York: Negro Universities Press, 1968 (1853)), 329; June Purcell Guild, Black Laws of Virginia: A Summary of the Legislative Acts of Virginia Concerning Negroes from Earliest Times to the Present (Richmond: Whittet and Shepperson, 1936), 175–76.
26. John W. Cromwell, “The Aftermath of Nat Turner’s Insurrection,” 5 Journal of Negro History 208, 218, 223, 230 (1920); ibid., 219 (quoting The Journal of the House of Delegates (1831), 9, 10). On the additional restrictions, see Guild, Black Laws of Virginia, 106–7 (“no slave, free Negro or mulatto shall preach, or hold any meeting for religious purposes either day or night.”). In 1848, Chapter 120 of the Criminal Code decreed: “It is an unlawful assembly of slaves, free Negroes or mulattoes for the purpose of religious worship when such worship is conducted by a slave, free Negro, or mulatto, and every such assembly for the purpose of instruction in reading and writing, by whomsoever conducted, and every such assembly in the night time, under whatsoever pretext.” Ibid., 178–79. The law also stated that “any white person assembling with slaves or free Negroes for purpose of instructing them to read or write, or associating with them in any unlawful assembly, shall be confined in jail not exceeding six months and fined not exceeding $100.00.” Ibid., 179.
27. Cromwell, “The Aftermath of Nat Turner’s Insurrection,” 231–33. For example, Tennessee’s 1831 act restricted “all assemblages of slaves in unusual numbers, or at suspicious times and places, not expressly authorized by the owners.” Leetch v. State, 2 Head 140 (Tenn. 1858). In upholding a fine against a slave owner for violating the provisions of the act, the Supreme Court of Tennessee opined: “The argument is unsound, that to constitute the offence the slaves, when assembled, must do some other unlawful act. That is not made an element by the Legislature, and we are not authorized to add it. It is a police regulation, founded on sound policy.” Ibid. See also State v. Brown, 27 Tenn. 89 (Tenn. 1847) (similar construction of 1831 act in appeal by grocerykeeper); C. Peter Ripley, The Black Abolitionist Papers (Chapel Hill: University of North Carolina Press, 1985), 443 n.9 (“most southern states”); Theodore Dwight Weld, “The Power of Congress over Slavery in the District of Columbia,” reprinted in Jacobus tenBroek, Equal under Law (New York: Collier Books, 1965), 271. Jacobus tenBroek describes Weld’s tract as “a restatement and synthesis of abolitionist constitutional theory as of that time.” tenBroek, Equal under Law, 243. See also Harry Kalven, The Negro and the First Amendment (Columbus: Ohio State University Press, 1965). Akhil Amar writes that the right of assembly for religious worship was “a core right that southern states had violated.” Amar, Bill of Rights, 245.
28. African Methodist Episcopal Church v. City of New Orleans, 15 La. Ann. 441 (La. 1860).
29. Eric Foner, ed., Nat Turner (Englewood Cliffs, N.J.: Prentice-Hall, 1971), 74 (quoting James L. Smith, Autobiography of James L. Smith (Norwich, Conn., 1881), 26–30); William Goodell’s 1853 book The American Slave Code observed that “religious liberty is the precursor of civil and political liberty and enfranchisement.” Goodell, The American Slave Code, 328.
30. Linda Lumsden, Rampant Women: Suffragists and the Right of Assembly (Knoxville: University of Tennessee Press, 1997), xxiii. Lumsden has suggested that “virtually the entire suffrage story can be told through the prism of the right of assembly.” Ibid., 144; Nancy Isenberg, Sex and Citizenship in Antebellum America (Chapel Hill: University of North Carolina Press, 1998), 16 (quoting John Alexander Jameson, A Treatise on the Principles of American Constitutional Law and Legislation: The Constitutional Convention (Chicago: E. B. Meyers, 1869)).
31. Jean Fagan Yellin and John C. Van Horne, eds., The Abolitionist Sisterhood: Women’s Political Culture in Antebellum America (Ithaca: Cornell University Press, 1994), ix (New York and Philadelphia conventions); Isenberg, Sex and Citizenship in Antebellum America, 15 (quoting “To the Women of Ohio,” Anti-Slavery Bugle, March 30, 1850) (Salem convention); ibid. (describing Salem forum).
32. Isenberg, Sex and Citizenship in Antebellum America, 46.
33. Isenberg, Sex and Citizenship in Antebellum America, 46; Lumsden, Rampant Women, xxvi, xxvii.
34. Annual Report of the Boston Female Anti-Slavery Society (1836), 27–28 (quoting Boston Commercial Gazette). Antiabolitionists reviled Thompson, calling him an “artful, cowardly fellow” who “always throws himself under the protection of the female portion of his audience when in danger.” Ibid., 12. On Garrison’s escape, see John L. Thomas, The Liberator: William Lloyd Garrison (Boston: Little, Brown, 1963). For Garrison’s response, see William Lloyd Garrison, Selections from the Writings and Speeches of William Lloyd Garrison (Boston: R. F. Wallcut, 1852), 377.
35. C. Peter Ripley, ed., The Black Abolitionist Papers (Chapel Hill: University of North Carolina Press, 1991), vol. 3, 166 n.17 (“cause célèbre”); John W. Blassingame, John R. McKivigan, and Peter P. Hinks, eds., The Frederick Douglass Papers (New Haven: Yale University Press, 1982), series 1, vol. 2, 207–8, 268 n.14 (on Douglass’s visit).
36. Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (Durham: Duke University Press, 2000), 362, 363; Curtis, No State Shall Abridge, 135 (“statute books groaned”).
37. Curtis, No State Shall Abridge, 137 (quoting Washington (D.C.) Evening Chron., Sept. 9, 1866, at 1, col. 5) (“if these persons assemble”); ibid., 136 (quoting Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York: Norton, 1974), 205–6) (describing Louisiana massacre).
38. Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (New York: Henry Holt, 2008), 3–4. See also David M. Chalmers, Hooded Americanism: The History of the Ku Klux Klan (Durham: Duke University Press, 1987), 8–21 (describing growth and violence of the Klan from 1865 to 1871).
39. 160 Stat 141 (1870); United States v. Cruikshank, 92 U.S. 542, 548 (1875)); Lane, The Day Freedom Died, 114.
40. United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871); Lane, The Day Freedom Died, 115.
41. Lane, The Day Freedom Died, 58, 62, 68. See also Aviam Soifer, Law and the Company We Keep (Cambridge, Mass.: Harvard University Press, 1995), 120–21.
42. United States v. Cruikshank, 551, 552. Cf. Lane, The Day Freedom Died, 246. After decades of relative obscurity, Cruikshank has recently garnered renewed attention for its discussion of the Second Amendment. See District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 130 S. Ct. 3020 (2010).
43. Cruikshank, 542, 552. Although unremarkable as a legal proposition today, Cruikshank’s holding had severe implications for the protection of African Americans in southern jurisdictions where the rule of law was in peril. It is possible to read the text of the opinion so that the additional clause modifies “petitioning” rather than “assemble,” as if Waite were referring to “the right of the people peaceably to assemble for the purpose of petitioning Congress for any thing else connected with the powers or the duties of the national government” rather than “the right of the people peaceably to assemble for any thing else connected with the powers or the duties of the national government.” Either way, the sentence cannot be read as limiting assembly to petitioning Congress for a redress of grievances.
44. Presser v. Illinois, 116 U.S. 252, 267 (1886). For later suggestions by the Court that assembly and petition are distinct rights, see McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (“In [United States v. Cruikshank], the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the states. Nonetheless, more than sixty years later the Court held that the right of peaceful assembly was a “fundamental righ[t] . . . safeguarded by the due process clause of the Fourteenth Amendment.”); District of Columbia v. Heller, 554 U.S. 570 (2008) (“State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular ‘right,’ and the First Amendment protects the ‘right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.’”); Thomas v. Collins, 323 U.S. 516, 530 (1945) (referring to “the rights of the people peaceably to assemble and to petition for redress of grievances” (emphasis added)). Cf. Chisom v. Roemer, 501 U.S. 380, 409 (1991) (Scalia, J., dissenting) (The First Amendment “has not generally been thought to protect the right peaceably to assemble only when the purpose of the assembly is to petition the Government for a redress of grievances.”). The scholarship interpreting Cruikshank as narrowing the right of assembly is voluminous. In 1908, a commentator writing in Bench and Bar cited Cruikshank in support of his contention that “the right to assemble is merely incidental to the right to petition” and concluded that “the right to assemble except for the purpose of petitioning the government is not expressly guaranteed by . . . the Federal Constitution.” “The Right of Assembly,” 13 Bench and Bar 9 (1908). This incorrect reading of assembly has persisted in more recent scholarship. See Note, “Freedom of Association: Constitutional Right or Judicial Technique,” 46 Virginia Law Review 730, 736 (1960) (“The first case to construe this provision of the first amendment construed freedom of assembly to mean the right to assemble in order to petition the government.”); Charles E. Rice, Freedom of Association (New York: New York University Press, 1962), 109 (citing Cruikshank for the view that the language in the First Amendment “constituted the right of petition as the primary right, and the right of assembly as the ancillary right, thereby guaranteeing a right to assemble in order to petition”); Glenn Abernathy, The Right of Assembly and Association (Columbia: University of South Carolina Press, 1961), 152 (“It is important to note that the Cruikshank dictum narrowed the federal right from that of ‘the right to peaceably assemble and petition for redress of grievances’ to ‘the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.’”) (emphasis added); Edward S. Corwin, Harold W. Chase, and Craig R. Ducat, Edwin S. Corwin’s The Constitution and What It Means Today, 14th ed. (Princeton: Princeton University Press, 1978), 332 (citing Cruikshank for the view that historically “the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if Amendment I read: ‘the right of the people peaceably to assemble’ in order to ‘petition the government’”). Presser has also been cited as limiting assembly to the purpose of petition. See Frank Easterbrook, “Implicit and Explicit Rights of Association,” 10 Harvard Journal of Law and Public Policy 97 (1987) (citing Presser for the view that the freedom of assembly is “the exercise by groups of the right to petition for redress of grievances”).
45. Richardson v. Union Congregational Society of Francestown, 58 N.H. 187 (N.H. 1877).
46. People ex rel. Rice v. Board of Trade of Chicago, 80 Ill. 134, 135 (Ill. 1875). The court noted that the board of trade “is not maintained for the transaction of business or for pecuniary gain, but simply to promulgate and enforce amongst its members correct and high moral principles in the transaction of business. It is not engaged in business, but only prescribes rules for the transaction of business.” Ibid., 136.
47. State ex rel. Poulson v. Grand Lodge of Missouri I.O.O.F., 8 Mo. App. 148, *4 (Mo. App. 1879). See also Josich v. Austrian Benevolent Soc. of San Jose, 51 P. 18, 19 (Cal. 1897) (quoting part of this passage from Poulson).
48. Frederick H. Bacon, A Treatise on the Law of Benefit Societies and Life Insurance: Voluntary Associations, Regular Life, Beneficiary and Accident Insurance, 2d ed. (St. Louis, 1894), vol. 1, 99.
49. Jameson, A Treatise on the Principles of American Constitutional Law and Legislation, 4, 5, 104. Jameson also refers to “spontaneous conventions” and “spontaneous assemblages.” Ibid., 4; Albert Orville Wright, An Exposition of the Constitution of the United States, 13th ed. (Madison, 1884), 21. Cf. Thomas McIntyre Cooley, The General Principles of Constitutional Law in the United States of America (Boston, 1880), 268 (“The right to assemble may be important for religious, social, industrial, or political purposes; but it was no doubt its political value that was in view in adopting the amendment.”).
50. Poyer v. Village of Des Plaines, 18 Ill. App. 225, *3 (Ill. App. 1 Dist. 1885). The opinion left open the factual determination of whether the particular assembly in question had qualified as a nuisance. Ibid., *5 (“Our conclusion is that so much of the ordinance as declares all public picnics and open air dances, regardless of their character, to be a nuisance, is invalid; and that the court erred in refusing to so instruct the jury. Whether the gathering on July 31st was of such a character as to bring it within the second clause of the ordinance which declares the use of the grounds for the assembling of disorderly persons, etc., to be a nuisance, was a question of fact for the jury, to be decided according to the evidence, under proper instructions by the court.”).
51. Anderson v. City of Wellington, 40 Kan. 173, 19 P. 719, 721, 722 (Kan. 1888). The leading case appears to be In re Frazee, 63 Mich. 396, 30 N.W. 72, 75 (Mich. 1886) (“It has been customary, from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members.”). See also Rich v. City of Naperville, 42 Ill. App. 222, 223–24 (Ill. App. 1891) (“Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one’s conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great latitude in public parades and demonstrations, whether religious or political, and if they do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether by legislative enactment, or municipal ordinance, is an encroachment upon fundamental and constitutional rights.”).
52. Von Rueden v. State, 96 Wis. 671, 71 N.W. 1048, 1049 (Wis. 1897). The Court noted that antecedent versions of the statute had gradually expanded its coverage from “any assembly of people, met for the worship of God, within the place of meeting or out of it,” to “when meeting or met together for the performance of any duties enjoined on or pertaining to them, as members of any religious society, or for the recitation or performance of, or instruction in vocal music,” to “any wedding party, or other company or assembly of peaceable citizens” to “all lawful meetings of the people.” Ibid., 1049. That same year, Judge Caldwell’s dissent in Hopkins v. Oxley Stave included an extended discussion of William Penn’s trial for freedom of assembly. Hopkins v. Oxley Stave Co., 83 F. 912 (8th Cir. 1897) (Caldwell, J., dissenting). Aziz Rana, The Two Faces of American Freedom (Cambridge, Mass.: Harvard University Press, 2010), 206. Rana continues: “Instead of popular participation being consigned to the occasional vote, the centrality of party identification meant that public involvement through a vast array of campaign activities—‘ratification meetings, pole-raisings, parades, marches, barbeques, rallies, and bonfires’—created a permanently engaged citizenry.” Ibid., 207.
53. Lumsden, Rampant Women, 3, 186 n.8, 146.
54. Lumsden, Rampant Women, 3, 17–19; Jennifer L. Borda, “The Woman Suffrage Parades of 1910–1913: Possibilities and Limitations of an Early Feminist Rhetorical Strategy,” 66 Western Journal of Communication 25 (2002) (quoting Blatch). On the relationship between grassroots movements and larger institutional structures, see generally, Theda Skocpol, Diminished Democracy: From Membership to Management in American Civic Life (Norman: University of Oklahoma Press, 2003).
55. James P. Roche, “Civil Liberty in the Age of Enterprise,” 31 University of Chicago Law Review 119 (1963); Langston Hughes, Fight for Freedom: The Story of the NAACP (New York: Norton, 1962), 22 (quoting Oswald Garrison Villard’s “Call for a Conference”); Adam Fairclough, Better Day Coming: Blacks and Equality 1890–2000 (New York: Viking, 2001), 83. Fairclough credits Du Bois with “provid[ing] the intellectual force that transmuted the carping criticism of a few individuals into something much more powerful: an organized movement with a clear program and a coherent ideology.” Ibid. On the rise in the NAACP’s membership, see Gilbert Jonas, Freedom’s Sword: The NAACP and the Struggle against Racism in America, 1909–1969 (New York: Routledge, 2005), 13–15; Theodore Kornweibel Jr., Seeing Red: Federal Campaigns against Black Militancy, 1919–1925 (Bloomington: Indiana University Press, 1998), 67.
56. Fairclough, Better Day Coming, 99, 111, 112, 129–31.
57. John Hope Franklin and Alfred A. Moss Jr., From Slavery to Freedom: A History of African Americans (New York: Alfred A. Knopf, 1994), 363, 376, 377.
58. Alexis J. Anderson, “The Formative Period of First Amendment Theory, 1870–1915,” 24 American Journal of Legal History 58 (1980); Philip Foner, The Great Labor Uprising of 1877 (New York: Monad Press, 1977), 8, 10, 27. Louis Adamic reported that by May of 1886, the Knights of Labor had surpassed one million members. Louis Adamic, Dynamite: The Story of Class Violence in America (New York: Viking Press, 1931), 86. Despite these numbers, the Knights of Labor were “anything but effectual” throughout their history. Ibid., 58–59, 87; Richard Schneirov, Shelton Stromquist, and Nick Salvatore, “Introduction,” in The Pullman Strike and the Crisis of the 1890s, ed. Richard Schneirov, Shelton Stromquist, and Nick Salvatore (Urbana: University of Illinois Press, 1999), 4 (“decade of labor unrest”).
59. Fiske v. Kansas, 274 U.S. 380, 383 (1927) (quoting Preamble); David M. Rabban, “The IWW Free Speech Fights and Popular Conceptions of Free Expression Before World War I,” 80 University of Virginia Law Review 1076 n.114 (1994) (citing Industrial Worker (Seattle), “A Call to Action,” February 26, 1910, 2); New York Times, “Paterson Checks Weavers’ Strike,” February 27, 1927; David M. Rabban, Free Speech in Its Forgotten Years (New York: Cambridge University Press, 1997), 85 (quoting Solidarity, “ ‘Heroic’ Contrasts,” July 26, 1913, 2).
60. Irwin M. Marcus, “The Johnstown Steel Strike of 1919: The Struggle for Unionism and Civil Liberties,” 63 Pennsylvania History 100 (1996); John Heaton, Cobb of “The World”: A Leader in Liberalism (New York: E. P. Dutton, 1924), 269–70. There has been some debate as to when or even whether the conversation between Wilson and Cobb occurred. See Jerold S. Auerbach, “Woodrow Wilson’s ‘Prediction’ to Frank Cobb: Words Historians Should Doubt Ever Got Spoken,” 54 Journal of American History 608 (1967); Arthur S. Link, “That Cobb Interview,” 72 Journal of American History 7 (1985). On the Palmer Raids, see Soifer, Law and the Company We Keep, 57.
61. Rabban, Free Speech in Its Forgotten Years, 7. Chafee’s important works in this period are Zechariah Chafee Jr., “Freedom of Speech in War Time,” 32 Harvard Law Review 932–73 (1919); Zechariah Chafee Jr., Freedom of Speech (New York: Harcourt, Brace, and Howe, 1920). For the importance of Chafee’s work to Holmes and Brandeis, see Rabban, Free Speech in Its Forgotten Years, 5. See also John Wertheimer, “Freedom of Speech: Zechariah Chafee and Free-Speech History,” 22 Reviews in American History 367, 374 (1994). On problems with Chafee’s scholarship, see ibid., 374–75 (Chafee’s “record as a scholar rightly gives us pause.”). Wertheimer also notes that Chafee’s advocacy was not without personal risk: “A group of conservative Harvard Law School alumni, with behind-the-scenes help from J. Edgar Hoover and the Justice Department, launched a campaign to have Chafee fired from Harvard on the grounds that his free-speech writings rendered him unfit to continue teaching there.” Ibid., 368.
62. Washington Post, “Pertinent Points in Republican Acceptance Speech,” July 23, 1920, 4; New York Times, “College Liberals Organize League,” April 4, 1921; New York Times, “Gompers Fights Sedition Bill,” January 19, 1920, 15 (Sterling-Graham sedition bill “can be used to kill free speech and free assembly”); ibid., “Labor Will Fight for Every Right, Gompers Asserts,” June 13, 1922, 1 (arguing against the denial of “freedom of expression, freedom of press, and the freedom of assembly”); ibid., “Gompers Assails Harding on Unions,” July 1, 1923, 3 (Daugherty injunction “sought to deny the constitutional rights of freedom of speech, freedom of assembly, and freedom of the press to railroad workers”). In 1951, President Truman, speaking at the dedication of a memorial to Gompers, said: “Above all, he fought the labor injunction because it was used to violate the constitutional rights to free speech and freedom of assembly.” Harry S. Truman, Address at the Dedication of a Square in Washington to the Memory of Samuel Gompers (October 27, 1951), courtesy of John T. Woolley and Gerhard Peters, The American Presidency Project (online). Santa Barbara: University of California (host).
63. Whitney v. California, 274 U.S. 357 (1927) (Brandeis J., concurring). The decision was formally overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). Brandeis concurred rather than dissented in Whitney on procedural grounds, but his opinion strongly rebuked the majority’s reasoning. See generally, Philippa Strum, Louis D. Brandeis: Justice for the People (Cambridge, Mass.: Harvard University Press, 1984), 306; Vincent Blasi, “The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California,” 29 William and Mary Law Review 653 (1988).
64. Whitney, 375 (Brandeis, J. concurring). Judges and scholars have written volumes about these words and those that followed, but almost all of them focus on speech alone rather than speech and assembly. Justice Brennan, writing for the Court in the landmark case New York Times v. Sullivan, deemed Brandeis’s Whitney concurrence the “classic formulation” of the fundamental principle underlying free speech. New York Times v. Sullivan, 376 U.S. 254, 270 (1964). Cf. H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics (Chicago: University of Chicago Press, 2002), 194. See also Robert Cover, “The Left, the Right, and the First Amendment: 1918–1928,” 40 Maryland Law Review 371 (1981) (“classic statement of free speech”). The only mention of “speech and assembly” prior to Whitney is New York ex rel. Doyle v. Atwell, 261 U.S. 590, 591 (1923) (noting that petitioners alleged a deprivation of the “rights of freedom of speech and assembly”).
65. See, e.g., Poulos v. New Hampshire, 345 U.S. 395, 423 (1953) (Douglas, J., dissenting) (“There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made. That is a previous restraint condemned by history and at war with the First Amendment.”); Kingsley International Pictures Corp. v. New York, 360 U.S. 684, 697–98 (1959) (Douglas, J., dissenting) (“I can find in the First Amendment no room for any censor whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.”); New York Times v. United States, 403 U.S. 713, 720–25 (1971) (Douglas, J., concurring). As Ashutosh Bhagwat has noted, Brandeis believed that “the textual right of assembly protects membership in political organizations.” Ashutosh Bhagwat, “Associational Speech,” 120 Yale Law Journal 978 (2011). See also American Communications Assn. v. Douds, 339 U.S. 382, 402 (1950) (“the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect ‘discouragements’ undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes.”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (noting that Douds referred to “the varied forms of governmental action which might interfere with freedom of assembly” and concluding that “compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order”). The principle that assembly encompasses membership is also evidenced by the now discredited logic underlying a number of the communist cases decided prior to the Court’s recognition of the right of association. See, e.g., Joint Anti- Fascist Refugee Committee v. Clark, 177 F.2d 79, 84 (D.C. Cir. 1949) (“Nothing in the Hatch Act or the loyalty program deprives the Committee or its members of any property rights. Freedom of speech and assembly is denied no one. Freedom of thought and belief is not impaired. Anyone is free to join the Committee and give it his support and encouragement. Everyone has a constitutional right to do these things, but no one has a constitutional right to be a government employee.”); Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950) (Edgerton, J., dissenting) (“Guilt by association . . . denies both the freedom of assembly guaranteed by the First Amendment and the due process of law guaranteed by the Fifth.”).
66. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 66, 72 (1928). Justice McReynolds’s lone dissent reflected his belief that the Court lacked jurisdiction in the case. Ibid., 77 (McReynolds, J., dissenting).
67. NAACP v. Alabama, 360 U.S. 240 (1959); Chalmers, Hooded Americanism, 2–5; Brandenburg v. Ohio, 395 U.S. 444 (1969). By the 1960s, Klan membership numbered no more than fifty thousand, “including the ladies’ auxiliaries.” Chalmers, Hooded Americanism, 387. No more than ten thousand of these were “hard core” members who “lived their lives completely in a Klan world.” Ibid. George Bryant’s trial and appeals had unfolded at the height of the Klan’s reign—Bryant was arrested following a shooting in September 1924 that alerted Buffalo authorities to the possibility of a secret Klan organization in violation of the Walker Law. “To Bring Criminal Action Against Buffalo Klan Heads,” New York Times, September 9, 1924, 1.
68. Cover, “The Left, the Right, and the First Amendment,” 354.
69. Cover, “The Left, the Right, and the First Amendment,” 442.
70. Jerold S. Auerbach, “The La Follette Committee: Labor and Civil Liberties in the New Deal,” 51 Journal of American History 440, 440 n.30, 442, 442 n.32 (1964).
71. New York Times, “Hoover’s Warning of the Perils to Liberty,” September 18, 1935, 10; New York Times, “Long and Coughlin Classed by Ickes as ‘Contemptible,’” April 23, 1935, 1.
72. De Jonge v. Oregon, 299 U.S. 353, 357, 358 (1937). De Jonge was sentenced to seven years’ imprisonment. Ibid., 358. See also Leahy, First Amendment, 316.
73. De Jonge, 362, 364, 365. Brandeis had called the right of assembly fundamental in his Whitney concurrence ten years earlier. Whitney v. California, 373.
74. Herndon v. Lowry, 301 U.S. 242, 258 (1937); Herndon v. State, 178 Ga. 832, 174 S.E. 597, 599 (Ga. 1934); J. C. Chunn, “Herndon Awaits Fate: Judge Reverses Decision; Will Study the Facts,” Pittsburgh Courier, November 16, 1935 (“Negro Republic”); Herndon v. State, 615; Charles H. Martin, The Angelo Herndon Case and Southern Justice (Baton Rouge: Louisiana State University Press, 1976), xii (“white liberals”); Herndon v. Lowry, 258.
75. John Dewey, “Creative Democracy: The Task Before Us,” in John Dewey: The Later Works, 1925–1953, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1976), vol. 14, 227, 228; Hague v. Committee for Industrial Organization, 101 F.2d 774 (3d Cir. 1939); The Committee on the Bill of Rights, “Brief of the Committee on the Bill of Rights of the American Bar Association” (hereinafter “Committee Brief ”) (February 27, 1939), 4, 7, 19.
76. “Association’s Committee Intervenes to Defend Right of Public Assembly,” 25 American Bar Association Journal 7 (1939); New York Times, “A Brief for Free Speech,” December 23, 1938, 18. The Times later wrote that the brief “was received all over the country with approval as a lucid exposition and defense of the fundamental guarantee of American liberty. New York Times, “Bar and Civil Liberties,” July 17, 1939, 10. Zechariah Chafee had a substantial role in drafting the brief. When he published Free Speech in the United States two years later, his thirty-page discussion of the freedom of assembly consisted almost entirely of verbatim sections of the brief. See Zechariah Chafee, Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1941), 409–38. The committee submitted a revised version of its amicus brief when the case reached the Supreme Court.
77. New York Times, “Mile-Long Mall Feature of Fair,” December 12, 1937, 57.
78. New York Times, “Fair to Broadcast to World Today,” January 1, 1939, 13. Thompson was at the time a news commentator for the New York Herald Tribune. She was considered by some to be “the most influential woman in the United States after Eleanor Roosevelt,” and her syndicated column, “On the Record,” reached an estimated eight to ten million readers three times a week. Susan Ware, Letter to the World: Seven Women Who Shaped the American Century (New York: Norton, 1998), 45. Thompson’s portrait graced the cover of Time on June 13, 1939. Ibid., 47. Her speech pitted the free assembly of democracy against the abuses of fascism. Dorothy Thompson, “Democracy,” Dorothy Thompson Papers, Series VII, Box 6 (Syracuse University Library) (January 1, 1939), 1.
79. Nicholas Murry Butler, “The Four Freedoms,” New York Times, March 5, 1939, AS5 (pictures of Friedlander’s statues accompanied Butler’s editorial); Henry Steele Commager, “To Secure the Blessings of Liberty,” New York Times, April 9, 1939, SM3.
80. New York Times, “Mayor Dedicates Plaza of Freedom,” May 1, 1939, 4; Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939). Roberts reached his assembly analysis through a somewhat contorted interpretation of the privileges and immunities clause. Justice Stone’s concurrence pointed out that neither of the parties had raised this argument, and that De Jonge’s analysis of the due process clause should have been controlling. Ibid., 518 (Stone, J., concurring); New York Times, “A Fundamental Liberty Upheld in Hague Case,” June 11, 1939, E7; Wall Street Journal, “Public Mind in Good Health,” January 7, 1941, 4.
81. Franklin Delano Roosevelt, Annual Message to Congress, The “Four Freedoms” Speech (January 6, 1941). See also The Franklin D. Roosevelt Four Freedoms Awards Home Page, http://www.fourfreedoms.nl (last visited April 2, 2011).
82. Time, “Of Thee They Sing,” February 24, 1941; Time, “Freely Criticized Company,” April 28, 1941.
83. Orson Welles, “His Honor, the Mayor,” in The Free Company Presents: A Collection of Plays about the Meaning of America (New York: Dodd, Mead, 1941), 143; Charles Higham, Orson Welles: The Rise and Fall of an American Genius (New York: St. Martin’s Press, 1985), 175; Time, “Freely Criticized Company”; Matthew F. McGuire, Memorandum for the Assistant to the Attorney General (April 24, 1941).
84. Washington Post (December 15, 1941); Henry Steele Commager, “Charter of Our Way of Life,” New York Times, December 14, 1941, SM6; New York Times, “Day Will Honor Bill of Rights,” November 29, 1941, 19.
85. Emily Roxworthy, The Spectacle of Japanese American Trauma: Racial Performativity and World War II (Honolulu: University of Hawaii Press, 2008), 70; Greg Robinson, A Tragedy of Democracy: Japanese Confinement in North America (New York: Columbia University Press, 2009), 131.
86. Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944); West Virginia v. Barnette, 319 U.S. 624, 638 (1943).
87. Thomas v. Collins, 323 U.S. 516 (1945); “Test for Texas Labor Law: Thomas of the Auto Union Will Argue His Case Before High State Court,” New York Times, October 10, 1943. See also “Thomas Will Test Texas Labor Law,” Atlanta Constitution, September 25, 1943 (“I came to Texas to test the constitutionality of the Manford act.”).
88. Thomas v. Collins, 530–31 (emphasis added), 534. The “preferred place” language originated in Justice Douglas’s opinion for the Court in Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943) (“Freedom of press, freedom of speech, freedom of religion are in a preferred position.”).
89. To Secure These Rights: The Report of the President’s Committee on Civil Rights (New York: Simon and Schuster, 1947), 47, 48. President Truman established the committee with Executive Order 9808 (December 5, 1946).
90. Some of the last cases to address the right of assembly were Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); and Gregory v. City of Chicago, 394 U.S. 111 (1969). Cf. Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971) (“The First [Amendment does] not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be ‘annoying’ to some people.”). The right of petition suffered a similar fate. See Stephen H. Higginson, “A Short History of the Right to Petition Government for a Redress of Grievances,” 96 Yale Law Journal 142, 142 (1986) (“the right of petition was collapsed into the right of free speech and expression”). See also David C. Frederick, “John Quincy Adams, Slavery, and the Disappearance of the Right of Petition,” 9 Law and History Review 113, 141 (1991) (the Supreme Court “merged the right of petition with other first amendment rights in a doctrine that obscures both the original meaning and the form of the right”). The references from Dr. King are taken from Martin Luther King Jr., Letter from a Birmingham Jail (April 16, 1963) (asserting that the Birmingham ordinance denied “citizens the First Amendment privilege of peaceful assembly and protest”); Martin Luther King Jr., I’ve Been to the Mountaintop (April 3, 1968) (“But somewhere I read of the freedom of assembly”).
91. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45 (1983). Cf. C. Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989), 316 n.18 (“An interesting, and perhaps ideologically telling, practice of the Supreme Court is its focus on ‘speech’ and expression in cases in which it has the option of using either a speech or an assembly analysis.”); Boos v. Barry, 485 U.S. 312, 315 (1988); Boos v. Barry, Brief for Petitioner at *74, *64 (1987 U.S. S. Ct. Briefs LEXIS 417).
Chapter 3. The Emergence of Association in the National Security Era
1. Shortly after the September 11, 2001, terrorist attacks, concerns over additional acts of domestic terrorism prompted then deputy assistant attorney general John Yoo to advise the White House and Department of Defense that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” See John Yoo, “Authority for Use of Military Force to Combat Terrorist Activities within the United States,” October 23, 2001, 24.
2. Formed at the urging of Congressman Martin Dies of Texas, the investigative body was popularly known as the “Dies Committee” from 1938 to 1945. From 1945 to 1957, the House Committee on Un-American Activities (HUAC) conducted more than 230 public hearings and examined more than three thousand witnesses, 135 of whom were cited for contempt. See Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945–1957 (New Orleans: Hauser Press, 1959), 181. See generally Thomas Emerson and David Helfeld, “Loyalty among Government Employees,” 58 Yale Law Journal 1, 8–19 (1948) (discussing the development of federal government’s loyalty program); To Secure These Rights: The Report of the President’s Committee on Civil Rights (New York: Simon and Schuster, 1947), 50.
3. Samuel Walker, In Defense of American Liberties: A History of the ACLU (New York: Oxford University Press, 1990), 176 (quoting Executive Order 9835, March 22, 1947). By 1951, the FBI had initiated fourteen thousand full-scale investigations of federal employees, which had led to more than two thousand resignations. Melvin Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (Boston: Twayne, 1991), 107. The loyalty determination standard is taken from Executive Order 9835, March 22, 1947. Clark’s response is reported in Emerson and Helfeld, “Loyalty among Government Employees,” 32. The story of the Attorney General’s List of Subversive Organizations (AGLOSO) is chronicled in Robert Justin Goldstein, American Blacklist: The Attorney General’s List of Subversive Organizations (Lawrence: University of Kansas Press, 2008), 64. By 1955, the list included almost three hundred organizations. Ibid., 62. The AGLOSO designation was “usually a kiss of death to an organization.” Ibid. (quoting Ellen Schrecker, The Age of McCarthyism (Boston: Bedford, 2002), 47).
4. Emerson and Helfeld, “Loyalty among Government Employees,” 70, 79, 81, 83. Emerson and Helfeld’s article drew a fiery response from J. Edgar Hoover, whose comments were printed in the next issue of the journal.
5. Charles Wyzanski Jr., “The Open Window and the Open Door: An Inquiry into Freedom of Association,” 35 California Law Review 336, 336–37, 338, 346 (1947). Roosevelt appointed Wyzanski to the federal bench in 1941. He served in that capacity for forty-five years, presided over the Harvard University Board of Overseers, and served as a trustee of the Ford Foundation. Eric Pace, “Charles E. Wyzanski, 80, is Dead,” New York Times, September 5, 1986, A20. Frankfurter had mentored Wyzanski at Harvard and called him “one of the most brilliant students I ever had.” Ibid.
6. Victor Navasky, Naming Names (New York: Viking Press, 1980), 80, 83. Hollywood executives issued the “Waldorf-Astoria Policy Statement,” which announced that producers would “not knowingly employ a Communist.” Harold Horowitz, “Loyalty Tests for Employment in the Motion Picture Industry,” 6 Stanford Law Review 443 (1954). The New York Times called the statement “an action unprecedented in American industrial fields.” Ibid.
7. Lucas A. Powe, The Warren Court and American Politics (Cambridge, Mass.: Belknap Press of Harvard University Press, 2002), 77–78.
8. Powe, The Warren Court and American Politics, 15. The McCarran Internal Security Act, 50 U.S.C. § 781, et seq. (1950), was also known as the Subversive Activities Control Act of 1950. Registered individuals were denied employment in government, defense, and labor unions. Powe, The Warren Court and American Politics, 77; Walker, In Defense of American Liberties, 198. Truman’s veto is mentioned in Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: Norton, 2004), 313.
9. American Communications Association v. Douds, 339 U.S. 382, 388 (1950). The statutory language is found in 61 Stat. 136, 146, 29 U. S. C. (Supp. III) § 141, § 159 (h), amending National Labor Relations Act of 1935, 49 Stat. 449, 29 U. S. C. § 151 et seq. I rely on Douds advisedly, as the case involves a labor union in the context of a statutory regulatory scheme. In the context of this narrative, it is most helpful for its rhetorical use of assembly rather than as marking the outer boundaries of autonomy for labor unions. See, e.g., ibid., 399 (recognizing “the high place in which the right to speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held today by those who value liberty both as a means and an end”).
10. Dennis v. United States, 341 U.S. 494 (1951); Walker, In Defense of American Liberties, 187 (quoting Baldwin); Martin H. Redish, The Logic of Persecution: Free Expression and the McCarthy Era (Stanford: Stanford University Press, 2005), 81–83, 87. Redish calls Dennis “one of the most troubling free speech decisions ever handed down by the United States Supreme Court.” Ibid., 81.
11. Dennis v. United States, 507, 511; Milton R. Konvitz, Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly (Ithaca: Cornell University Press, 1957), 307; Dennis v. United States, 581 (Black, J., dissenting); Allida M. Black, Casting Her Own Shadow: Eleanor Roosevelt and the Shaping of Postwar Liberalism (New York: Columbia University Press, 1996), 154, 155. Black reports that “the furor [Roosevelt’s] stance generated cut into her lecture tour and deprived her of income she needed.” Ibid.
12. Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (Westport, Conn.: Greenwood Press, 1977), 156, 157; Fred Jerome, The Einstein File: J. Edgar Hoover’s Secret War against the World’s Most Famous Scientist (New York: St. Martin’s Press, 2002), 238–39, 246, 247. McCarthy labeled Einstein “an enemy of America.” Ibid., 240. Einstein also advised that educators refuse to answer questions about association based on First Amendment rights of “free speech and free association.” New York Times, “Balky Teacher Cites Dr. Einstein’s Advice,” December 19, 1953. Einstein remained inflamed by the rampant McCarthyism. A few months before his death, he wrote: “If I were a young man again . . . I would not try to become a scientist or teacher, I would rather choose to be a plumber or a peddler, in the hope of finding that modest degree of independence still available under present circumstances.” Jerome, The Einstein File, 355.
13. Belknap, Cold War Political Justice, 157–58 (Belknap writes that “juries ground out Smith Act convictions with monotonous regularity.” Ibid., 157); Adler v. Board of Education, 342 U.S. 485, 489–90, 493 (1952). Black, Douglas, and Frankfurter filed separate dissents. Black protested the Court’s endorsement of a law “which effectively penalizes school teachers for their thoughts and their associates.” Ibid., 497 (Black, J., dissenting). Douglas refused to accept “the recent doctrine that a citizen who enters the public service can be forced to sacrifice his civil rights.” Ibid., 508 (Douglas, J., dissenting). Frankfurter’s lengthy dissent rested largely on procedural grounds. Ibid., 497 (Frankfurter, J., dissenting).
14. Wieman v. Updegraff, 344 U.S. 183, 186, 191 (1952).
15. Wieman v. Updegraff, 195 (Frankfurter, J., concurring) (citation omitted). The Court had mentioned a “freedom of association” in Douds. See 339 U.S. at 409 (“the effect of [a] statute in proscribing beliefs—like its effect in restraining speech or freedom of association—must be carefully weighed by the courts in determining whether the balance struck by Congress comports with the dictates of the Constitution”). Its only mention of a right of association prior to Douds had been a passing reference to “the rights of free speech, assembly, and association” in Whitney v. California, 274 U.S. 357, 371 (1927); Thomas I. Emerson and David Haber, Political and Civil Rights in the United States (Buffalo: Dennis, 1952), 248. Emerson and Haber wrote: “It is generally accepted that the rights in the First Amendment to freedom of speech, press and assembly, and to petition the government for redress of grievances, taken in combination, establish a broader guarantee to the right of political association.” Ibid.
16. Powe, The Warren Court and American Politics, 90 (“most important jurist”). At a 1972 memorial service for Harlan, Justice Stewart quipped: “I can assure you that a very interesting law review article could someday be written on ‘The Liberal Opinions of Mr. Justice Harlan.’” Norman Dorsen, “John Marshall Harlan,” in The Warren Court: A Retrospective, ed. Bernard Schwartz (New York: Oxford University Press, 1996), 241. The “McCarthyite garbage” reference comes from Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court (New York: Oxford University Press, 1992), 338 (quoting Charles Fried). Frankfurter also “privately deplored the excesses of McCarthyism and the witch-hunts conducted in the name of national security,” and “risked personal opprobrium in his defense of some of the accused.” Melvin I. Urofsky, Felix Frankfurter: Judicial Restraint and Individual Liberties (New York: Twayne, 1991), 105.
17. Poe v. Ullman, 367 U.S. 497, 542–43 (1961) (Harlan, J., dissenting).
18. Service v. Dulles, 354 U.S. 363 (1957); Watkins v. United States, 354 U.S. 178 (1957); Yates v. United States, 354 U.S. 298, 318–20 (1957). On the effect of Yates on Smith Act prosecutions, see Walker, In Defense of American Liberties, 243 (Yates “halted further Smith Act prosecutions”); Yarbrough, John Marshall Harlan, 191 (“Following [Yates], Smith Act prosecutions were drastically curtailed, then abandoned entirely.”). Following the decisions, outraged conservatives in the Senate led by William Jenner of Indiana introduced a “court-stripping” bill to deprive the Court of certain subject matter jurisdiction.
19. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (plurality opinion); N.H. Rev. Stat. Ann.1955, c. 588, §§ 1–16 (New Hampshire Subversive Activities Act of 1951); Wyman v. Sweezy, 100 N. H. 103, 113 (N.H. 1956). Sweezy v. New Hampshire, 247. Warren paid particular attention to Sweezy’s role as a university professor, noting that “scholarship cannot flourish in an atmosphere of suspicion and distrust” and “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Ibid., 250.
20. Sweezy v. New Hampshire, Jurisdictional Statement of Appellant, filed June 19, 1956 (“Jurisdictional Statement”), 27, 4, 19. These arguments weren’t at issue in Scales, Watkins, and Dulles, all of which involved federal rather than state action.
21. See Barron v. Mayor and City Council of City of Baltimore, 32 U.S. 243 (1833); United States Constitution, Amendment XIV. This clause restricted state action that deprived “liberty” without due process, but it remained to be seen what exactly that encompassed. Soon after passage of the Fourteenth Amendment, the Court focused on a different provision of the Bill of Rights, the Privileges and Immunities Clause. In the Slaughter-House Cases, 16 Wall. (83 U.S.) 36 (1873), the Court intimated that the Bill of Rights might be applicable to the states through the Fourteenth Amendment as “privileges and immunities” of citizenship. This is the theory that Justice Roberts relied upon to hold the freedom of assembly applicable to Mayor Hague’s actions in Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939). But besides Hague, the Court has usually cited the Due Process Clause rather than the Privileges and Immunities Clause in applying the rights of the First Amendment to state action.
22. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922); Gitlow v. New York, 268 U.S. 652, 666 (1925); De Jonge v. Oregon, 299 U.S. 353 (1937).
23. Palko v. Connecticut, 302 U.S. 319, 324–26 (1937). Cardozo continued: “These, in their origin, were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor Justice would exist if they were sacrificed.” Ibid., 325 (citations omitted). Later that year, Chief Justice Hughes reached a similar conclusion about the right of assembly in De Jonge v. Oregon: “The First Amendment of the Federal Constitution expressly guarantees [the right of assembly] against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions—principles which the Fourteenth Amendment embodies in the general terms of its due process clause.” De Jonge v. Oregon, 364.
24. Murdock v. Pennsylvania, 319 U. S. 105, 108 (1943); Everson v. Board of Education, 330 U.S. 1, 8 (1947); Wolf v. Colorado, 338 U.S. 25, 26 (1949). Black concurred and Douglas dissented, arguing that entirety of Fourth Amendment applied to the states.
25. Murdock v. Pennsylvania, 108 (Rutledge had used the same language with respect to the freedom of assembly in Thomas v. Collins, 530–31). Black and Douglas didn’t share the exact same views about incorporation. Douglas joined Black’s dissent in Adamson v. California, which argued that the Fourteenth Amendment had incorporated all of the civil liberties provisions of the Bill of Rights. Adamson v. California, 332 U. S. 46, 71–72 (1947) (Black, J., dissenting). But elsewhere Douglas backed away from Black’s “total incorporation” theory; Kovacs v. Cooper, 336 U.S. 77, 90, 95–96 (1949) (Frankfurter, J., concurring); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943). There were, of course, phrasings ambiguous enough to be consistent with both alternatives. See, e.g., Staub v. City of Baxley, 355 U.S. 313, 325 (1958) (the “fundamental right [of speech] is made free from congressional abridgment by the First Amendment and is protected by the Fourteenth from invasion by state action”).
26. See Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
27. Sweezy v. New Hampshire, 250; ibid., 255–56, 266–67 (Frankfurter, J., concurring). Justice Clark’s dissent erroneously concluded that Frankfurter concurred “on the ground that Sweezy’s rights under the First Amendment had been violated.” Ibid., 268 (Clark, J., dissenting).
28. Powe, The Warren Court and American Politics, 35 (quoting Brown v. Board of Education, Amicus Brief of the United States of America); ibid. (quoting New York Times, May 18, 1954, 19); “Equal Education for All,” Washington Post, May 19, 1954, 19. See generally, Mary L. Dudziak, “Brown as a Cold War Case,” 91 Journal of American History 32 (2004).
29. Jeff Woods, Black Struggle, Red Scare: Segregation and Anti-Communism in the South, 1948– 1968 (Baton Rouge: Louisiana State University Press, 2004), 49 (citing Aldon D. Morris, The Origins of the Civil Rights Movement: Black Communities Organizing for Change (New York: Free Press, 1984), 26–33); Charles H. Martin, The Angelo Herndon Case and Southern Justice (Baton Rouge: Louisiana State University Press, 1976), xii; Woods, Black Struggle, Red Scare, 5, 53. Neil McMillen asserts that “the region had virtually no Communists.” Neil R. McMillen, The Citizens’ Council: Organized Resistance to the Second Reconstruction, 1954–64 (Urbana: University of Illinois Press, 1971), 193. But see Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 580 (1963) (Harlan, J., dissenting) (“it is not amiss to recall that government evidence in Smith Act prosecutions has shown that the sensitive area of race relations has long been a prime target of Communist efforts at infiltration”). In 1950, the NAACP adopted an “anti-communism” resolution that acknowledged that “certain branches of the National Association for the Advancement of Colored People are being rocked by internal conflicts between groups who follow the Communist line and those who do not, which threaten to destroy the confidence of the public in the Association and which will inevitably result in its eventual disruption” and “there is a well organized, nationwide conspiracy by Communists either to capture or split and wreck the NAACP.” Ibid., 580, 581 (quoting Statement from Forty-First Convention of the National Association for the Advancement of Colored People).
30. Powe, The Warren Court and American Politics, 42 (Powe writes that the footnote “reduced both the legal and moral force” of the opinion. Ibid., 44); ibid., 39; McMillen, The Citizens’ Council, 195 (Eastland followed this argument with a frontal assault in a publication called “Is the Supreme Court Pro-Communist?” Ibid., 195–96. Another segregationist, Medford Evans, wrote that “forced integration is communism in action.” Ibid., 197); Woods, Black Struggle, Red Scare, 5; Powe, The Warren Court and American Politics, 68; McMillen, The Citizens’ Council, 198. Brady told one council gathering that the NAACP “was a willing and ready tool in the hands of Communist front organizations.” NAACP v. Alabama, Brief Supporting Petition for Certiorari (“NAACP Cert Brief ”), 21 n.20 (citing Brady comments made on June 22, 1955). He was careful to make a clear distinction between the councils and the “nefarious Ku Klux Klans.” McMillen, The Citizens’ Council, 18.
31. Powe, The Warren Court and American Politics, 68; NAACP Cert Brief at 20 (quoting Southern School News, vol. 1, no. 5: 2); Powe, The Warren Court and American Politics, 68, 165.
32. Powe, The Warren Court and American Politics, 165 (quoting Mark Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936–1961 (New York: Oxford University Press, 1994), 283).
33. NAACP v. Alabama, Petition for Certiorari, 17, 18; Petitioner’s Brief, 21, 22, 24; Respondent’s Brief, 2. Alabama insisted that the only harm articulated by the NAACP and its members was “the mere speculation of injury by private persons to its members.” Ibid., 12. Citing United States v. Cruikshank, 92 U.S. 542 (1875), the state contended that “private action is not state action” and did not constitute a violation of constitutional rights. Ibid.
34. NAACP v. Alabama, Amicus Brief of American Jewish Congress et al. (“Pfeffer Amicus Brief ”), October 3, 1957; NAACP v. Alabama, 355 U.S. 860 (1957) (denying motion for leave to file amicus brief); Leo Pfeffer, The Liberties of an American: The Supreme Court Speaks (Boston: Beacon Press, 1956), 111.
35. Pffefer Amicus Brief, 8, 10–11, 15.
36. NAACP v. Alabama, January 15, 1958 Oral Argument Tr. at 32:15; NAACP v. Alabama, January 16, 1958, Oral Argument Tr. at 51:30–1:01:20. Rinehart instead challenged the NAACP’s attempt to assert the right as a corporation or on behalf of its members. He argued that Watkins and Sweezy had addressed assertions of individual rights, not the rights of a group. He intimated only once that the state could constrain an individual right of association, arguing unconvincingly that a member of the NAACP asked during a hearing to confirm his membership would be required to make such a disclosure. Ibid., 1:00:20–1:01:13. Rinehart also argued vehemently that the right of association wasn’t implicated, because the case involved no state action: any adverse treatment following disclosure of membership in the NAACP would come from private persons or businesses, not the state. Ibid. For good measure, Rinehart implausibly contended that the possibility of these private actions was “pure speculation.” Ibid., 55:00.
37. Yarbrough, John Marshall Harlan, 161 (quoting John M. Harlan, Memorandum for the Conference, April 22, 1958, Harlan Papers, Box 495).
38. NAACP v. Alabama, 461; De Jonge v. Oregon, 353; Thomas v. Collins, 516; NAACP v. Alabama, 460; De Jonge v. Oregon, 364 and Thomas v. Collins, 528 n.12; NAACP v. Alabama, 460 (citing American Communications Association v. Douds, 339 U.S. 382, 402 (1950)).
39. NAACP v. Alabama, 460, 462, 463, 466; Thomas I. Emerson, “Freedom of Association and Freedom of Expression,” 74 Yale Law Journal 2 (1964); George P. Smith, “The Development of the Right of Assembly: A Current Socio-Legal Investigation,” 9 William and Mary Law Review 366 (1967). See also David Fellman, The Constitutional Right of Association (Chicago: University of Chicago Press, 1963), 3 (“The broader rights of association have developed, in part, out of the right of assembly, and in part out of broader due process concepts.”); Melvin Rishe, “Freedom of Assembly,” 15 DePaul Law Review 317 (1965) (“To refer to [association] as a new freedom would be amiss for it is only a further development of the freedom of assembly so plainly stated in the first amendment.”). But see Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), 17, 18 (asserting that “NAACP v. Alabama made clear that freedom of association was firmly rooted in the First Amendment” and describing the right of association as a “speech-based right”).
40. Yarbrough, John Marshall Harlan, 125 (quoting NAACP v. Alabama, Harlan opinion draft, Harlan Papers, Box 533); ibid. (quoting Felix Frankfurter to John M. Harlan, April 23, 1958, Harlan Papers, Box 46). The justices realized that “unanimity was considered crucial in racial cases.” Ibid., 162. Yarbrough cites letters from Erwin Griswold and Edward Corwin congratulating Harlan on the opinion. Ibid., 165 n.35 (citing Erwin Griswold to John M. Harlan, July 8, 1958, Harlan Papers, Box 538; Edward S. Corwin to John M. Harlan, July 7, 1958, Harlan Papers, Box 511).
41. William O. Douglas, The Douglas Letters: Selections from the Private Papers of Justice William O. Douglas, ed. Melvin I. Urofsky (Bethesda: Adler and Adler, 1987), 198 (quoting William O. Douglas to John Marshall Harlan, April 22, 1958). Dissenting from an opinion handed down the same day as NAACP v. Alabama, Douglas wrote that the liberties contained in the First Amendment include “the right to believe what one chooses, the right to differ from his neighbor, the right to pick and choose the political philosophy that he likes best, the right to associate with whomever he chooses, the right to join the groups he prefers, the privilege of selecting his own path to salvation.” Beilan v. Board of Public Education, 357 U.S. 399, 412–13 (1958) (Douglas, J., dissenting).
42. Yarbrough, John Marshall Harlan, 126–27; 126 (quoting Hugo L. Black to John M. Harlan, May 2, 1958, Harlan Papers, Box 46); 162. Clark threatened to dissent on procedural grounds, but Frankfurter persuaded him to join the majority on the merits. Ibid., 162, 163.
43. Bryant v. Zimmerman, 278 U.S. 63, 72 (1928); NAACP v. Alabama, 465–66. Harlan also attempted a less plausible distinction, noting that “the situation before us is significantly different from that in Bryant, because the organization there had made no effort to comply with any of the requirements of New York’s statute but rather had refused to furnish the State with any information as to its local activities.” Ibid., 465–66.
44. “Freedom of Association,” Washington Post, July 3, 1958, A12 (emphasis added); “Freedom to Associate,” New York Times, July 2, 1958, 28. The Ohio State Law Journal tied the new freedom of association to the freedom of assembly and suggested that the decision reinforced that “first amendment rights occupy a high position in the hierarchy of constitutional freedoms and may be limited only when the state has a compelling interest.” Frank M. Hays, “State May Not Compel Association to Disclose Names of Members,” 20 Ohio State Law Journal 123, 124–25, 124 n.8 (1959). Cf. ibid., 126 (the Court followed “quite closely its previous holdings in the area of free speech and assembly”). The Brooklyn Law Review concluded that the freedom of association, although not mentioned in the First Amendment, was “included therein.” “Freedom of Association— Right to Privacy,” 25 Brooklyn Law Review 123 (1985). The George Washington Law Review suggested that “the new freedom of association is a cognate of . . . first amendment freedoms and enjoys coordinately their preferred status.” Myron Solter, “Freedom of Association—A New and Fundamental Civil Right,” 27 George Washington Law Review 653, 672 (1959). The Harvard Law Review’s summary of Alabama noted that the holding rested on “freedom of association” but did not elaborate on the nature or source of that freedom. “Disclosure of Membership Lists,” 72 Harvard Law Review 193, 194 (1958).
45. Uphaus v. Wyman, 360 U.S. 72 (1959); Barenblatt v. United States, 360 U.S. 109 (1959); Anthony Lewis, “High Court Term a Significant One,” New York Times, July 6, 1958, 29. It is important to keep in mind that the Supreme Court’s application of the new right of association in communist cases came after the height of McCarthyism. See generally, Goldstein, American Blacklist, 205 (noting the Senate’s censure of McCarthy in late 1954 and emphasizing that by 1955, the government’s loyalty program had come “under increasingly withering and sustained attack from broad sectors of American society.”).
46. Uphaus v. Wyman, 77, 81; ibid., 82, 103 (Brennan, J., dissenting). Brennan wrote: “The Court describes the inquiry we must make in this matter as a balancing of interests. I think I have indicated that there has been no valid legislative interest of the State actually defined and shown in the investigation as it operated, so that there is really nothing against which the appellant’s rights of association and expression can be balanced.” Ibid., 106. Brennan’s dissent conflated speech, expression, assembly, association, and privacy, referring at times to the “rights of association and expression,” ibid., 106, and “the interest in privacy as it relates to freedom of speech and assembly.” Ibid., 107–8. But he made his most frequent appeals to the constitutional rights of “speech and assembly.” Ibid., 82, 83, 97, 105, 106, 107–8. Black, Douglas, and Warren joined Brennan’s dissent.
47. Compare United States Constitution, Amendment I (“Congress shall make no law . . .”) with Amendment V (forbidding the deprivation of “liberty . . . without due process of law” by the federal government). The right of association couldn’t be applied to the federal government through the Due Process Clause of the Fourteenth Amendment because that provision applied only to “States”; Barenblatt, 126. See also ibid. (“Undeniably, the First Amendment in some circumstances protects an individual from being compelled to disclose his associational relationships.”). Harlan’s conclusion that the right of association limiting the federal government was found in the First Amendment is not inconsistent with his view that the right of association limiting state action was in the Fourteenth Amendment. That was, in essence, how he viewed rights specifically enumerated in the First Amendment.
48. Barenblatt, 113–14; Yarbrough, John Marshall Harlan, 201 (quoting Frankfurter); Barenblatt, 125.
49. Yarbrough, John Marshall Harlan, 202 (quoting Felix Frankfurter to John M. Harlan, June 3, 1959); Barenblatt, 120.
50. Powe, The Warren Court and American Politics, 144; Barenblatt, 134; ibid., 143 (Black, J., dissenting) (Douglas and Warren joined Black’s dissent, and Brennan dissented separately); ibid., 150–51. Black rested his dissent on the First Amendment rights of speech and association.
51. Barenblatt, 127; Uphaus, 78, 77.
52. Bates v. Little Rock, 361 U.S. 516, 522–23 (1960); ibid., 527–28 (Black and Douglas, JJ., concurring) (emphasis added). On the intent of the ordinances, see Joseph B. Robison, “Protection of Associations from Compulsory Disclosure of Membership,” 58 Columbia Law Review 614 (1958). Similar statutory efforts unfolded in Virginia, Texas, and Tennessee. Ibid., 616. Louisiana attacked the NAACP through an existing state law that had originally been drafted against the Ku Klux Klan. A note in the Virginia Law Review published after Bates suggested that “the concept of ‘freedom of association’ illustrates the development of a judicial technique” for dealing with the particular kind of situation at issue in NAACP v. Alabama and Bates rather than “an enunciation of an independent constitutional right.” Peter R. Fisher, “Freedom of Association: Constitutional Right or Judicial Technique?” 46 Virginia Law Review 730 (1960).
53. Shelton v. Tucker, 364 U.S. 479, 486 (1960); ibid., 496 (Harlan, J., dissenting) (citations omitted). B. T. Shelton had refused to file the affidavit due to his membership in the NAACP. Ibid., 483. He had originally challenged both the affidavit requirement and a separate Arkansas statue making it unlawful for any member of the NAACP to be employed by the state of Arkansas. Ibid., 484 n.2.
54. Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 294, 296, 297 (1961).
55. Walker, In Defense of American Liberties, 241. Membership in the NAACP in the South had fallen from 128,000 in 1955 to 80,000 in 1957, and almost 250 branches had closed. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 383. In Louisiana, membership plummeted from 13,000 to 1,700, and in South Carolina it fell from 8,200 to 2,000. Ibid. The litigation that led to NAACP v. Alabama effectively shut down the NAACP in that state from the time of the 1956 injunction until the case was finally resolved in 1964 (following additional litigation after the Supreme Court’s decision). Ibid. On the demise of the communist party, see generally Robert Justin Goldstein, Political Repression in Modern America: From 1870 to the Present (Cambridge, Mass.: Schenkman, 1978), 369 (“The most dramatic and easily documentable effect of the Truman-McCarthy period was the virtual annihilation of the Communist Party.”).
56. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 93 (1961) (“SACB”); Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (New York: Harper and Row, 1988), 264. Kalven contends that the 212 pages of opinions by the justices and the belief that the case involved legislation limited in scope to the Communist Party has led the decision to be “treated as outside the mainstream of First Amendment precedent.” Ibid. He argues that despite its verbosity, SACB “is quite possibly the precedent which carries the greatest threat to political freedoms in the future” and deserves a “central place” in First Amendment case law. Ibid. Frankfurter entitled a section of his opinion “The Freedoms of Expression and Association Protected by the First Amendment.” SACB, 88. He asserted that “the power of Congress to regulate Communist organizations [subject to foreign control] is extensive,” but that power was “limited by the First Amendment.” Ibid., 95, 96. Frankfurter concluded that the act’s registration provisions were “not repugnant to the First Amendment,” and that certain accounting provisions did not violate “First Amendment rights.” Ibid., 103. Douglas’s dissent noted that “[f]reedom of association is included in the bundle of First Amendment rights[.]” Ibid., 171 (Douglas, J., dissenting) (citing NAACP v. Alabama, 460). Brennan’s partial dissent referred to “the rights of freedom of advocacy and association guaranteed by the First Amendment.” Ibid., 191 (Brennan, J., dissenting in part). Warren joined Brennan’s partial dissent. Black’s dissent never explicitly referenced a “First Amendment right of association,” but his opinion made clear that he accepted the First Amendment argument. See, e.g., ibid., 148 (Black, J., dissenting) (“The freedom to advocate ideas about public matters through associations of the nature of political parties and societies was contemplated and protected by the First Amendment.”). Although SACB suggested that all nine justices accepted that the right of association applied against the federal government came from the First Amendment, the source of the right of association constraining state action remained unclear.
57. Scales v. United States, 367 U.S. 203 (1961). The Court also issued its opinion in Noto v. United States, 367 U.S. 290 (1961), which unanimously reversed a conviction under the Smith Act’s membership clause. But Noto relied exclusively on a sufficiency of the evidence analysis. Ibid., 291 (“The only one of petitioner’s points we need consider is his attack on the sufficiency of the evidence, since his statutory and constitutional challenges to the conviction are disposed of by our opinion in Scales, and consideration of his other contentions is rendered unnecessary by the view we take of his evidentiary challenge.”).
58. Walker, In Defense of American Liberties, 240; Kalven, A Worthy Tradition, 259. Cf. Walker, In Defense of American Liberties, 240 (referring to “a double standard for political groups”).
59. See Yarbrough, John Marshall Harlan, 339 (noting Harlan’s “reluctance as a Justice to second-guess the judgments of government officials regarding national security matters”); ibid., 212; ibid. (quoting Brennan Papers, Box 407).
60. Powe, The Warren Court and American Politics, 155.
61. Yarbrough, John Marshall Harlan, 210; Powe, The Warren Court and American Politics, 155; Yarbrough, John Marshall Harlan, 210.
62. Powe, The Warren Court and American Politics, 156; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963); Walker, In Defense of American Liberties, 241. Powe writes that Goldberg was “looking for a way to protect the NAACP without having to overrule all the legislative-investigation cases.” Powe, The Warren Court and American Politics, 221. Harlan’s dissent argued that the Court’s decision forced the legislative committee “to prove in advance the very things it is trying to find out.” Gibson, 576 (Harlan, J., dissenting). Cf. Milton R. Konvitz, Expanding Liberties: The Emergence of New Civil Liberties and Civil Rights in Postwar America (New York: Viking Press, 1967), 109 (“if Alabama or Arkansas or Florida or Louisiana had won in the Court, a way would have opened for the South to paralyze the N.A.A.C.P. and any other civil rights or civil liberties organization; and since the Bill of Rights is not self-executing, but is dependent upon vindication through litigation, the struggle for freedom and equality would have been effectively arrested.”). The Court acknowledged its attenuated application of the right of association in communist cases in Keyishian v. Board of Regents, 385 U.S. 589 (1967). Justice Clark’s dissent, joined by Harlan, Stewart, and White, lamented that “the majority has, by its broadside, swept away one of our most precious rights, namely, the right of self-preservation.” Ibid., 620 (Clark, J., dissenting).
63. Gibson, 559 (Black, J., concurring); ibid., 560 n.2, 562–63, 569–570 (Douglas, J., concurring). Douglas reiterated his arguments for association (some of which were taken verbatim from his Gibson concurrence) in a lecture that he delivered at Brown University and subsequently published in the Columbia Law Review. See William O. Douglas, “The Right of Association,” 63 Columbia Law Review 1361 (1963). Harlan’s dissent in Gibson (joined by Clark, Stewart, and White) ignored Douglas’s attacks on the liberty argument for association.
64. Glenn Abernathy, The Right of Assembly and Association (Columbia: University of South Carolina Press, 1961); Charles E. Rice, Freedom of Association (New York: New York University Press, 1962); David Fellman, The Constitutional Right of Association (Chicago: University of Chicago Press, 1963); Rice, Freedom of Association, xvii–xviii; Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945–1957 (New Orleans: Hauser Press, 1959), viii.
65. Glenn Abernathy, “The Right of Association,” 6 South Carolina Law Quarterly 32, 33–34, 72, 75–77 (1953).
66. Abernathy, The Right of Assembly and Association, 240.
67. Abernathy, The Right of Assembly and Association, 4, 173, 236–37 (emphasis added), 237. The right of assembly, of course, requires judgment by limiting its protections to groups that don’t pose a threat of imminent harm to the state. That judgment is a subjective political one made by the state. But the right of association also includes this political judgment and other subjective assessments like the one that Abernathy identified.
68. Emerson, “Freedom of Association and Freedom of Expression,” 2, 3.
69. On my reading, postwar pluralists like Dahl and Truman exhibit both the balance and the consensus assumptions, but these are sometimes split between “interest group pluralists” and “consensus thinkers,” respectively. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 251. Horwitz acknowledges that “in some formulations, in fact, both consensus and equilibrium theories might converge, as the interest group pluralists conceded that what underlay the substantive conflict over ends was a more fundamental agreement about process.” Ibid. See also ibid., 257 (describing the “close relationship between interest group pluralist theories of politics modeled on equilibrium theories in economics and consensus theories that sought to find fundamental agreement over ends and values”).
70. Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New York: D. Appleton, 1899); James Madison, “Federalist No. 10,” in The Federalist, ed. Benjamin F. Wright (New York: Barnes and Noble, 2004).
71. John Gunnell, “The Genealogy of American Pluralism: From Madison to Behavioralism,” 3 International Political Science Review 254, 256 (1996). For a more detailed account of Lieber’s role, see John Gunnell, Descent of Political Theory (Chicago: University of Chicago Press, 1993), 24–32. Gunnell writes that Lieber’s Manual of Political Ethics sought “to distinguish the state from the family, the church, and other social entities and to establish the primacy of the state.” Ibid., 28. By the 1880s, the theory of the state was “a distinct and influential paradigm” in American political thought. Ibid., 36. The primacy of the state in classical liberalism is evident in Hobbes’s Leviathan but also in Locke’s more familiar liberal thought. Even when Locke discusses a freedom of religious association in his Letter Concerning Toleration, he makes clear that when minority practices collide with majority will, the latter prevails. See John Locke, A Letter Concerning Toleration (Indianapolis: Hackett, 1983 (1689)), 49 (“No opinions contrary to human Society, or to those moral Rules which are necessary to the preservation of Civil Society, are to be tolerated by the Magistrate.”).
72. Arthur Bentley, The Process of Government (Chicago: University of Chicago Press, 1908), xxxiv, 258–59 (original emphasis), 208–9. Bentley doesn’t develop the concept of “balance” to the degree of later pluralists. He describes law as “the pressures being assumed to have worked themselves through to a conclusion or balance” but notes that “the pressures never do as a matter of fact work themselves through to a final balance, and law, stated as a completed balance, is therefore highly abstract.” Ibid., 272. On the demise of German idealism, see Gunnell, The Genealogy of American Pluralism, 254.
73. Earl Latham, “The Group Basis of Politics: Notes for a Theory,” 46 American Political Science Review 379 (1952) (describing Laski’s views); Herbert H. Deane, The Political Ideas of Harold J. Laski (New York: Columbia University Press, 1955), 13; Harold Laski, Authority in the Modern State (New Haven: Yale University Press, 1919), 65, 75–81, 384–85; Gunnell, “The Genealogy of American Pluralism,” 257. Laski drew from other British pluralists, including John Figgis, Frederic Maitland, and G. D. H. Cole. Deane, The Political Ideas of Harold J. Laski, 17, 26–27. A separate prong of Laski’s attack against the state challenged legal positivists like Bentham and Austin who maintained that the state was sovereign and that law itself was nothing more than the command of the sovereign. Ibid., 14–15. Deane writes that Laski’s distrust of consolidated political power led him to desire “to see power split up, divided, set against itself, and thrown widespread among men by various devices of decentralization.” Ibid., 17. Cf. Grant McConnell, Private Power and American Democracy (New York: Knopf, 1966), 119 (“the private association . . . has been linked with the values of decentralization and federalism. It has also been pictured as the source of stability in politics and held up as the medium of the public interest.”).
74. Gunnell, “The Genealogy of American Pluralism,” 260; Gunnell, Descent of Political Theory, 204; Gunnell, “The Genealogy of American Pluralism,” 259; John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power (Boston: Houghton Mifflin, 1952); David Riesman, The Lonely Crowd: A Study of the Changing American Character (New Haven: Yale University Press, 1950), 246–51; Godfrey Hodgson, America in Our Time (Garden City: Doubleday, 1976), 12, quoted in Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage (New York: Oxford University Press 2000), 119. Other important works building on Laski’s pluralist concepts included A History of Political Theories: Recent Times, ed. Charles Meriam and Henry Elmer Barnes (New York: Macmillan, 1924), and Pendleton Herring, Group Representation before Congress (Baltimore: Johns Hopkins Press, 1929). Laski himself drifted away from pluralism in favor of socialism. Deane writes that by the early 1930s, Laski found “the essence of the state to be its power to enforce its norms upon all who live within its boundaries and its supremacy over all other forms of social grouping.” Deane, The Political Ideas of Harold J. Laski, 84.
75. David Bicknell Truman, The Governmental Process: Political Interests and Public Opinion (New York: A. Knopf, 1951), 502, 503, 506, 514.
76. Gunnell, Descent of Political Theory, 221 (quoting Dahl); ibid., 265. Morton Horowitz calls Dahl’s Preface to Democratic Theory “perhaps the most influential book of democratic theory during the post-war period.” Horwitz, The Transformation of American Law, 256. Richard Merelman suggests that Dahl’s 1956 A Preface to Democratic Theory and his 1970 After the Revolution? bookend the era of postwar pluralist dominance. Richard Merelman, Pluralism at Yale: The Culture of Political Science in America (Madison: University of Wisconsin Press, 2003), 17. Merelman observes that the claims that Dahl considers as “settled” in the former are “up for grabs” in the latter. Ibid., 18. On Dahl’s indebtedness to Laski, see Avigail Eisenberg, Reconstructing Political Pluralism (Albany: State University of New York Press, 1995), 96; Robert Dahl, Democracy, Liberty, and Equality (New York: Oxford University Press, 1986), 281–82 n.11.
77. Robert Dahl, Democracy in the United States: Promise and Performance (Chicago: Rand McNally, 1972), 35; C. Wright Mills, The Power Elite (Oxford: Oxford University Press, 1956); Robert Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), 133; Eisenberg, Reconstructing Political Pluralism, 141; Dahl, A Preface to Democratic Theory, 151. Eisenberg suggests that stability became the motivation behind Dahl’s research program: “Pluralist politics did not interest Dahl because it provided the highest ideals of democracy. Rather, pluralism was prized because it stabilizes what might otherwise be an unstable and conflict-ridden environment.” Eisenberg, Reconstructing Political Pluralism, 158.
78. Robert Dahl, Pluralist Democracy in the United States: Conflict and Dissent (Chicago: Rand McNally, 1967), 24; Dahl, Democracy in the United States, 41–42; Robert Dahl, Modern Political Analysis (Englewood Cliffs, N.J.: Prentice-Hall, 1963), 73.
79. Gunnell, Descent of Political Theory, 263. Cf. ibid., 106 (the controversy about “state and pluralism” was “in the end, one about the identity of political theory and political science”). These trends in some ways continue today, with graduate work in political science increasingly focused on mastering statistical techniques and formal modeling. Cf. Powe, The Warren Court and American Politics, xii (“There was a time when political scientists had as much interest in the Court as did academic lawyers and when the major journals of political science regularly published articles in this genre. . . . Today a nonquantitative article on the Supreme Court and politics in a political science journal would stick out like an article on physics in a law journal.”). See also Sheldon S. Wolin, “Political Theory as a Vocation,” 63 American Political Science Review 1063 (1969) (“Like all technique-oriented activity, the behavioral movement presupposes that the fundamental purposes and arrangements served by its techniques have been settled and that, accordingly, it reinforces, tacitly or explicitly, those purposes and arrangements and operates according to a notion of alternatives tightly restricted by these same purposes and arrangements.”).
80. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995), 226, 271.
81. Bentley, The Process of Government, 372; Myron Hale, “The Cosmology of Arthur F. Bentley,” in The Bias of Pluralism, ed. William Connolly (New York: Atherton Press, 1971), 45. 82. John Dewey, Freedom and Culture (New York: G. P. Putnam, 1939), 134, 175; Daniel
Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1953) (Boorstin claimed that “we all actually have a common belief, have glossed over sectarian differences in religion and produced a kind of generalized, non-denominational faith” and “this kind of faith, taken together with the lack of distinctions in our political philosophy, has tended to break down the boundaries between religious and political thought.” Ibid., 162); Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (New York: Harcourt, 1955), 11 (Hartz’s book began with an epigraph from Democracy in America and praised Tocqueville for “a series of deep insights into the American liberal community.” Ibid., i, 31); Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 23 (Charles Beard’s famous study is An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913)); Daniel Bell, The End of Ideology: On the Exhaustion of Political Ideas in the Fifties (Glencoe, Ill.: Free Press, 1960) (Bell argued that the changing face of the American labor movement no longer evoked calls to Marxism or other ideologies. Ibid.).
83. Truman, The Governmental Process, 506, 507, 512–15, and 515 n.15. Potential groups didn’t require a physical association because “[i]f the claims implied by the interests of these potential groups are quickly and adequately represented, interaction among those people who share the underlying interests or attitudes is unnecessary.” Ibid., 506. The rules of the game were “dominant with sufficient frequency in the behavior of enough important segments of the society” that “both the activity and the methods of organized interest groups are kept within broad limits.” Ibid., 515.
84. Truman, The Governmental Process, 520, 521, 523.
85. Truman, The Governmental Process, 513; Latham, “The Group Basis of Politics,” 384. The state “establishes the norms of permissible behavior in group relations, and it enforces these norms.” Ibid, 383. For Latham, this normative role of the state ultimately traced to its laws, which required “popular consent and understanding” to be effective. Ibid., 389. With respect to “the abolition of groups,” consider Robert Goldstein’s observation that actual or proposed inclusion on the Attorney General’s List of Subversive Organizations likely triggered the dissolution of groups that included the Abraham Lincoln School of Chicago, American Poles for Peace, the American Committee for Yugoslav Relief, the Benjamin Davis Freedom Committee, the China Welfare Appeal, the Committee for the Negro in the Arts, Everybody’s Committee to End War, the Maritime Committee to Defend Al Lannon, and the National Association of Mexican Americans. Goldstein, American Blacklist, 67.
86. Dahl, A Preface to Democratic Theory, 132–33. Behavioralism convinced Dahl and other pluralists that their functionalist account of democracy honored the fact-value distinction exalted by positivist thought.
87. Robert Dahl, Who Governs? Democracy and Power in an American City (New Haven: Yale University Press, 1961), 316, 317; Dahl, Democracy in the United States, 52, 50; Dahl, A Preface to Democratic Theory, 150.
88. Madison, “Federalist No. 10.” Cf. Bernard Brown, “Tocqueville and Publius,” in Reconsidering Tocqueville’s Democracy in America, ed. Abraham Eisenstadt (New Brunswick: Rutgers University Press, 1988), 48 (Madison “postulates a critical difference between faction (even when it is embodied by a majority) on the one hand and justice or the public good on the other. Throughout The Federalist the warning is sounding that the immediate interests of individuals as well as of majorities may not further the long-term good of the collectivity.”).
89. Truman, The Governmental Process, 6; Theodore Lowi, The End of Liberalism: The Second Republic of the United States (New York: Norton, 1979), 55. Cf. ibid., 36 (in contemporary pluralism, “groups became virtuous; they must be accommodated, not regulated”). See also Paul F. Bourke, “The Pluralist Reading of James Madison’s Tenth Federalist,” 9 Perspectives in American History 272 (1975) (“Madison’s discussion of faction and interest establishes the close fit of modern pluralist theory and the wider American political culture.”).
90. Dahl, A Preface to Democratic Theory, 15, 26, 29, 18, 22.
91. Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca: Cornell University Press, 1995), 205; Ralph Ketcham, James Madison, 2d ed. (Charlottesville: University of Virginia Press, 1990), ix. Cf. Brown, “Tocqueville and Publius,” 45–46 (suggesting that Dahl reads The Federalist to reflect “the ideology of a wealthy and advantaged elite”); Lowi, The End of Liberalism, 55.
92. Sheldon Wolin, Tocqueville between Two Worlds: The Making of a Political and Theoretical Life (Princeton: Princeton University Press, 2001), 240; Tocqueville, Democracy in America, 203–4. Tocqueville had carefully studied both The Federalist and Story’s Commentaries on the Constitution, the latter of which reproduced Federalist No. 10 in its entirety. Brown, “Tocqueville and Publius,” 43–45. Early in Book I of Democracy in America, Tocqueville wrote in a footnote that he would “often have occasion to quote The Federalist in this work.” Tocqueville, Democracy in America, 134 n.8. He opined that “The Federalist is a fine book which, although it particularly concerns America, should be familiar to statesmen of all countries.” Ibid. See also Brown, “Tocqueville and Publius,” 53, 54 (Tocqueville thought that “men of virtue would filter the raw passions and demands of the people,” and “thus would egoistic individualism (Madison’s factionalism) be transcended and an era of enlightened self-interest (Madison’s public good) ushered in.”); George Kateb, “Some Remarks on Tocqueville’s View of Voluntary Associations,” in Nomos XI: Voluntary Associations, ed. J. Roland Pennock and John W. Chapman (New York: Atherton Press, 1969), 142 (“The Madisonian vision of democratic politics as the struggle of potentially transgressive factions is absent from Tocqueville’s account.”).
93. Dahl, Democracy in the United States, 87 (Dahl notes that African Americans were an exception here but maintains that there was otherwise immense equality among the “free white population.” Ibid.); Dahl, Who Governs? 312, 318, 2, 3. Dahl criticized Tocqueville’s argument “that the stability of the American democratic system depends . . . on an almost universal belief in the basic rules of the democratic game.” Ibid., 312. But while Dahl highlighted disagreement over “specific applications” of democratic principles to “crucial cases,” he maintained a basic agreement with those principles.
94. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 17; McConnell, Private Power and American Democracy, 349. Cf. ibid., 358 (“Federalism and interest group ‘pluralism’ with which it is associated today are instruments of conservatism and particularism. The ideology of ‘grass roots democracy’ and the gradual growth of power in small units by the institutional processes of accommodation have probably betrayed us into yielding too much of the republic’s essential values of liberty and equality.”).
95. Rogers M. Smith, Liberalism and American Constitutional Law (Cambridge, Mass.: Harvard University Press, 1985), 14. Cf. Mark E. Warren, Democracy and Association (Princeton: Princeton University Press, 2001) (“because [Tocqueville’s] bipolar state-civil society model fails to conceive economic and social power effects, it produces a limited conception of what counts as ‘political.’ ”).
96. An important exception to the separation of public and private that I am describing was the role of state-sponsored churches in some areas of the country.
97. Tocqueville, Democracy in America, vol. 1, 290. For example, the nation that Tocqueville observed in 1830 had fewer than twelve thousand federal employees (almost nine thousand of whom worked for the Post Office) out of a population of more than thirteen million. Dahl, Pluralist Democracy in the United States, 60–61. As Mark Warren has written, “Tocqueville linked capacities for mediation and representation to civic habits developed within the associational fabric of civil society, which he in turn related to a strong meaning of democracy located in associational capacities for collective action.” Warren, Democracy and Association, 30.
98. Morton J. Horwitz, “The History of the Public/Private Distinction,” 130 University of Pennsylvania Law Review 1424, 1426, 1428 (1981); Kalman, The Strange Career of Legal Liberalism, 17; Lowi, The End of Liberalism, 42, 43. Cf. Theodore Lowi, “The Public Philosophy: Interest-Group Liberalism,” 61 American Political Science Review 6 (1967) (“Once the principle of positive government in a growing and indeterminable political sphere was established, criteria arising out of the very issue of whether such a principle should be established became extinguished. They were extinguished by the total victory of one side of the old dialogue over the other.”). As Morton Horwitz suggests, it was “the emergence of the market as a central legitimating institution” that “brought the public/private distinction into the core of legal discourse during the nineteenth century.” Horwitz, “The History of the Public/Private Distinction,” 1424. Horwitz elaborates that “one of the central goals of nineteenth century legal thought was to create a clear separation between constitutional, criminal, and regulatory law—public law—and the law of private transactions—torts, contracts, property, and commercial law.” Ibid.
99. Henry Kariel, The Decline of American Pluralism (Stanford: Stanford University Press, 1961), 1, 10; Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, 2004), 374; Kariel, The Decline of American Pluralism, 2; John Dewey, The Public and Its Problems (New York: Henry Holt, 1927), 126, 137.
100. McConnell, Private Power and American Democracy, 362, 146, 341–42. Cf. ibid., 362 (The government can be neither arbiter nor mediator when “the distinction between public and private is lost.”). For example, the 1933 National Industrial Recovery Act and the 1935 Wagner Act bestowed upon labor unions “a substantial measure of public power.” Ibid., 146. Professional and trade associations had been “given the power to nominate personnel, virtually as a form of representation, to official licensing boards” and “on occasion, to policy-making boards.” Ibid., 147. And “private” associations like the American Farm Bureau Federation and the Chamber of Commerce of the United States had “direct government encouragement in their formation.” Ibid.
101. McConnell, Private Power and American Democracy, 123, 124.
102. Michael Paul Rogin, The Intellectuals and McCarthy: The Radical Specter (Cambridge, Mass.: MIT Press, 1967), 10, 271, 16; Lowi, The End of Liberalism, 38, 55; William Connolly, “The Challenge to Pluralist Theory,” in The Bias of Pluralism, ed. William Connolly (New York: Atherton Press, 1971), 5. Connolly suggests that Madison and Tocqueville provided the “intellectual springboards” for many pluralist thinkers. Ibid., 4. Lowi explained that interest group liberalism “is liberalism because it is optimistic about government, expects to use government in a positive and expansive role, is motivated by the highest sentiments, and possesses a strong faith that what is good for government is good for the society. It is interest-group liberalism because it sees as both necessary and good a policy agenda that is accessible to all organized interests and makes no independent judgment of their claims. It is interest-group liberalism because it defines the public interest as a result of the amalgamation of various claims.” Lowi, The End of Liberalism, 51.
103. See generally, Wolin, Politics and Vision, 315–92, 557–606.
104. Madison, “Federalist No. 10.” Tocqueville, Democracy in America, 305, 305–6, 303; Wolin, Tocqueville between Two Worlds, 250–51. Wolin believes that Tocqueville “concluded that in America there were insufficient legal safeguards against the tyranny of the majority.” Wolin, Tocqueville between Two Worlds, 250.
105. Ronald Kahn, The Supreme Court and Constitutional Theory, 1953–1993 (Lawrence: Kansas University Press, 1994), 89; Stephen M. Feldman, “From Modernism to Postmodernism in American Legal Thought: The Significance of the Warren Court,” in The Warren Court: A Retrospective, ed. Bernard Schwartz (New York: Oxford University Press, 1996), 335; Kalman, The Strange Career of Legal Liberalism, 26; Richard A. Posner, “The Decline of Law as an Autonomous Discipline: 1962–1987,” 100 Harvard Law Review 761, 765 (1987). Cf. ibid. (“At least in the academy, the radical right had been discredited first by its isolationism and then by its racism, and the radical left had been squashed by the Cold War. Secular, humanistic, patriotic, and centrist, the American intellectual scene in the late 1950s and early 1960s was remarkably free from ideological strife.”). Feldman elsewhere elaborates that “these ‘legal process’ professors shared easily in the idea of a social consensus party because of a lack of diversity among themselves” and “during the 1940s and 1950s, the overwhelming majority were white males.” Stephen M. Feldman, American Legal Thought from Premodernism to Postmodernism, 119.
106. Arthur J. Goldberg, “New Frontiers for Lawyers and the Law,” American Law Institute (May 19, 1961), in The Defenses of Freedom: The Public Papers of Arthur J. Goldberg, ed. Daniel Patrick Moynihan (New York: Harper and Row, 1964), 145; Charles Nesson, “The Harlan-Frankfurter Connection: An Aspect of Justice Harlan’s Judicial Education,” 36 New York Law School Law Review 179 (1991); Joseph P. Lash, From the Diaries of Felix Frankfurter (New York: Norton, 1975); AFL v. American Sash Door Co., 335 U.S. 538, 546 (1949) (Frankfurter, J., concurring) (in the quote that Frankfurter cited, Laski had warned of the dangers of “personify[ing] the idea” of an association). Harold J. Laski, “Morris Cohen’s Approach to Legal Philosophy,” 15 University of Chicago Law Review 575, 581 (1948); John M. Harlan, “Thoughts at a Dedication: Keeping the Judicial Function in Balance,” 49 American Bar Association Journal 944 (1963); William J. Brennan Jr., “Some Aspects of Federalism,” 39 New York University Law Review 945–961, 945, 960 (1964). Frankfurter’s view was consistent with his more general deference to an interest in national unity. See, e.g., Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 600 (1940) (defending “the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.”). The Court overruled Gobitis three years later in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Jeffrey Hockett suggests that “Frankfurter’s understanding of the political process anticipated the tenets of pluralist political thought.” Jeffrey D. Hockett, “Justices Frankfurter and Black: Social Theory and Constitutional Interpretation,” 107 Political Science Quarterly 487 n.36 (1992). Brennan’s later thinking evinced greater skepticism about the national unity toward which he gestured in his 1964 address. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 777 (1978) (Brennan, J., dissenting) (“The Court’s decision may be seen for what, in the broader perspective, it really is: another of the dominant culture’s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.”). Ronald Kahn has argued that the Warren Court “rejected the apologetic pluralism of its age, as represented in the scholarship of Robert Dahl and David Truman, and placed into its jurisprudence a critical pluralist interpretation of politics, as later represented in the scholarship of Grant McConnell and Theodore Lowi.” Kahn, The Supreme Court and Constitutional Theory, 251. That conclusion may be reflected in some dimensions of the Warren Court’s jurisprudence, but it is not borne out in the way that the justices shaped the right of association.
Chapter 4. The Transformation of Association in the Equality Era
1. Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 34 (1959) (Wechsler argued that “the question posed by state-enforced segregation [was] not one of discrimination at all” but represented “the denial by the state of the freedom to associate.”); Brown v. Board of Education, 347 U.S. 483 (1954); Andrew Koppelman, Antidiscrimination Law and Social Equality (New Haven: Yale University Press, 1996), 179 (“Wechsler’s objection to Brown is silly with respect to public schools”).
2. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1993), 65, 97. For examples of integration in public places, see, e.g., Brown v. Board of Education; Boynton v. Virginia, 364 U.S. 454 (1960) (interstate transportation); Turner v. Memphis, 369 U.S. 350 (1962) (airports); Johnson v. Virginia 373 U.S. 61 (1963) (per curiam) (courtrooms); Brown v. Louisiana, 383 U.S. 131 (1966) (libraries); Watson v. Memphis, 373 U.S. 526 (1963); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971 (1954); Holmes v. City of Atlanta, 350 U.S. 879 (1955); New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (private restaurant owner who refused service based on customer’s race violated Fourteenth Amendment because restaurant was located in a building leased from a state entity).
3. Pub. L. 88–352, 78 Stat. 241 (July 2, 1964); 42 U.S.C. §§ 2000a(b) and (e); Bell v. Maryland, 378 U.S. 226, 314 (1964) (Goldberg, J., concurring); Daniel v. Paul, 395 U.S. 298, 301–2 (1969) (rejecting an amusement park’s contention that it was a private club exempt from the act because it charged patrons a twenty-five-cent “membership” fee and distributed “membership” cards). Bell addressed the trespass convictions of African Americans who had participated in a sit-in at a Baltimore restaurant in light of city and state public accommodations laws enacted after their convictions. The Court issued its decision ten days prior to the enactment of the Civil Rights Act of 1964 and remanded the case to the Maryland Court of Appeals. Ibid., 239. Justice Goldberg, joined by Justice Douglas and Chief Justice Warren, argued that the Fourteenth Amendment “resolves this apparent conflict of liberties in favor of the Negro’s right to equal public accommodations.” Ibid., 314 (Goldberg, J., concurring). Some of the constitutional momentum against discrimination in places of public accommodation preceded the act. See, e.g., Marsh v. Alabama, 326 U.S. 501, 506 (1946) (“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”). For a more comprehensive history, see Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” 90 Northwestern University Law Review 1283 (1996).
4. Jones v. Alfred H. Mayer, 392 U.S. 409, 444, 441, 442 (1968); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969); Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973); 42 U.S.C. §§ 3601–3631; Sullivan v. Little Hunting Park, 241, 248 (Harlan, J., dissenting). In Sullivan, the Court characterized Little Hunting Park’s exclusion of African Americans as “a device functionally comparable to a racially restrictive covenant.” 396 U.S. at 236. In Tillman, a unanimous Court concluded that “the structure and practices of Wheaton-Haven . . . are indistinguishable from those of Little Haven Park.” 410 U.S. at 438.
5. Runyon v. McCrary, 427 U.S. 160 (1976); Norwood v. Harrison, 413 U.S. 455, 463 (1973). For cases enjoining state tuition grants, see, e.g., Brown v. South Carolina Board of Education, 296 F.Supp. 199 (D.C.S.C. 1968), aff’d per curiam, 393 U.S. 222 (1968); Poindexter v. Louisiana Financial Assistance Comm’n, 275 F.Supp. 833 (E.D. La. 1967), aff ’d per curiam, 389 U.S. 571 (1968).
6. Norwood v. Harrison, 470 (Burger was referring to Section 2 of the Thirteenth Amendment and also noted that “Congress has made such discrimination unlawful in other significant contexts”), 463, 469.
7. Gilmore v. City of Montgomery, 417 U.S. 556, 572, 573, 574, 575 (1974). The decision came after repeated instances of Montgomery’s blatant disregard of mandates to integrate its public facilities. Ibid., 575.
8. Runyon v. McCrary, 427 U.S. 160, 168, 173, 176 (1976); Norwood v. Harrison, 455, 469–70 (emphasis added); Runyon v. McCrary, 176. See George Rutherglen, “Civil Rights in Private Schools: The Surprising Story of Runyon v. McCrary,” in Civil Rights Stories, ed. Myriam E. Gilles and Risa Lauren Goluboff (New York: Foundation Press, 2008), 111 (Runyon “subordinated private choice to civil rights policy and extended federal law beyond the limitations of the state action doctrine”).
9. John Hope Franklin, “The Civil Rights Act of 1866 Revisited,” 41 Hastings Law Journal 1135, 1138 (1990). See Rutherglen, “Civil Rights in Private Schools,” 111. Ibid., 122 (noting that in Patterson v. McLean Credit Union, 491, U.S. 164, 171–75 (1989), the Court asked for briefing on whether Runyon should be overruled but decided against overruling it and that Patterson was superseded by the Civil Rights Act of 1991, “which amended section 1981 to make clear that it covered all aspects of contractual relations and applied to all contracts”).
10. Runyon v. McCrary, 427 U.S. at 176 (quoting McCrary v. Runyon, 515 F.2d 1082, 1087 (4th Cir. 1975)). See Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), 19 (“If the schools are integrated, it is hard to imagine that this will not have some effect on the ideas taught.”); William Buss, “Discrimination by Private Clubs,” 67 Washington University Law Quarterly 815, 831 (1989) (“The assertion that forcing a school to admit black children will ‘in no way’ inhibit the school’s intended message that racial integration is bad proves too much to swallow. Just as government-mandated school segregation conveys a powerful message that black people are unworthy to associate with whites, state-mandated integration conveys a powerful message that blacks and whites are human beings with equal worth and dignity. That message must blunt any merely verbal message, taught in the school, that segregation is a good thing.”). Some scholars have nevertheless left Stewart’s reasoning here unchallenged, arguing instead that the defendants in Runyon never contended that they should be protected as “expressive associations” (notwithstanding the fact that the Court had yet to recognize such a category). See, e.g., David E. Bernstein “The Right of Expressive Association and Private Universities’ Racial Preferences and Speech Codes,” 9 William and Mary Bill of Rights Journal 619, 626–27 (2001) (“A close reading of Runyon and the briefs filed in it reveal that Runyon was not an “expressive association” case. The defendants in Runyon made what amounts to a short, throw-away argument that their right to ‘freedom of association,’ floating somewhere in the penumbral ether of the Constitution, was violated by compelled integration. However, the defendants did not make an expressive association claim grounded in the First Amendment. They did not argue in their briefs that the school’s ability to promote segregation would be compromised, nor did they provide evidence at trial on that issue.”).
11. Stewart soon reiterated this distinction between act and message in cases beyond the civil rights context. Writing for the majority in Abood v. Detroit Board of Education, a 1977 case involving an “agency shop” arrangement for state government employees, he described “the freedom of an individual to associate for the purpose of advancing beliefs and ideas.” Abood v. Detroit Board of Education, 431 U.S. 209, 233 (1977) (emphasis added). And four years later, writing for the Court in Democratic Party of the United States v. Wisconsin, a case involving political parties, Stewart referred to the “freedom to gather in association for the purpose of advancing shared beliefs.” Democratic Party of the United States v. Wisconsin, 450 U.S. 107, 121 (1981) (emphasis added). That same year, Burger echoed Stewart’s view in Citizens Against Rent Control v. Berkeley. Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981). Although acknowledging that “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process,” Burger asserted that the real value of association was “that by collective effort individuals can make their views known, when, individually, their voices would be faint or lost.” Ibid., 294 (emphasis added). Three years later, Brennan adopted Stewart’s distinction between belief and practice and rendered association wholly instrumental to other First Amendment freedoms. Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).
12. See Sweezy v. New Hampshire, 354 U.S. 234, 266–67 (1957) (Frankfurter, J., concurring), and Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 560 (1963) (Douglas, J., concurring); NAACP v. Alabama, 462 (Harlan continued: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”); Griswold v. Connecticut, 381 U.S. 479 (1965).
13. Louis Brandeis and Sam Warren, “The Right to Privacy,” 4 Harvard Law Review 193, 195 (1890); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
14. Bernard Schwartz, The Unpublished Opinions of the Warren Court (New York: Oxford University Press, 1985), 237, 235. Douglas’s only mention of privacy in the draft came in the concluding paragraph, where he linked privacy to association, as he had done in his Gibson concurrence: “The prospects of police with warrants searching the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives is repulsive to the idea of privacy and association that make up a goodly part of the penumbra of the Constitution and Bill of Rights.” Ibid., 236 (quoting Douglas’s draft opinion). Schwartz writes that Douglas’s sole mention of privacy in the last sentence of his draft “is scarcely enough to make it the foundation for any constitutional right of privacy, particularly for the broadside right established by the final Griswold opinion.” Ibid., 230.
15. Schwartz, The Unpublished Opinions of the Warren Court, 237; Griswold v. Connecticut, 484. Brennan argued that Douglas’s expanded view of association would extend First Amendment protection to the Communist Party. Schwartz, The Unpublished Opinions of the Warren Court, 237–38.
16. Griswold v. Connecticut, 483; Zemel v. Rusk, 381 U.S. 1, 24 (1965) (Douglas, J., dissenting) (quoting the papal encyclical Pacem in Terris); Griswold v. Connecticut, 483.
17. Thomas v. Collins, 323 U.S. 516, 540 (1945); Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 170 (1961) (Douglas, J., dissenting). See Poulos v. New Hampshire, 345 U.S. 395, 423 (1953) (Douglas, J., dissenting) (“There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made. That is a previous restraint condemned by history and at war with the First Amendment.”); Kingsley International Pictures Corp. v. New York, 360 U.S. 684, 697–98 (1959) (Douglas, J., dissenting) (“I can find in the First Amendment no room for any censor whether he is scanning an editorial, reading a news broadcast, editing a novel or a play, or previewing a movie.”); New York Times v. United States, 403 U.S. 713, 720–25 (1971) (Douglas, J., concurring).
18. Griswold v. Connecticut, 483; Lathrop v. Donohue, 367 U.S. 820, 882 (1961) (Douglas, J., dissenting).
19. Griswold v. Connecticut, 499, 500 (Harlan, J., concurring); ibid., 509 (Black, J., dissenting).
20. Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 486; Brandeis and Warren, “The Right to Privacy,” 215; Eisenstadt v. Baird, 453; H. Jefferson Powell, The Moral Tradition of American Constitutionalism (Durham: Duke University Press, 1993), 176, 177. Powell writes that Eisenstadt “clearly marked the reemergence of substantive due process as a mode of constitutional argument that the Court considered legitimate.” Ibid., 176.
21. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Belknap Press of Harvard University Press, 1999 (1971)); John Gunnell, “The Real Revolution in Political Science,” 37 PS: Political Science 49 (2004). Gunnell’s important insight has gone largely unexamined within political theory. Rawls has inspired an enormous secondary literature, and it is not my intention here to summarize the many applications and critiques of his theory of justice. Rather, I am only interested in covering the background necessary to interrogate his views about the freedom of association. Because Rawls’s work developed throughout the equality era, and because more refined articulations appear in his later writings, I draw upon some of these later sources and assume that they are in continuity with his original theory unless otherwise indicated.
22. John Rawls, Political Liberalism (New York: Columbia University Press, 1995), xvii and 148 (sectarian religious violence), 35 (“well-ordered society”); Rawls, A Theory of Justice, 232 (“Archimedean point”); Rawls, Political Liberalism, 135 (“incommensurable doctrines”), 148 (modus vivendi), 36 (“overlapping consensus”); Rawls, A Theory of Justice, 6, 79, 386. Rawls’s premise about sectarian religious violence has not gone unchallenged. See, e.g., William T. Cavanaugh, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (New York: Oxford University Press, 2009) (challenging conventional and historical understandings of “religion” and “secular”).
23. Rawls, Theory of Justice, 457, 458, 462, 186. Rawls omits the freedom of association from his list of these liberties in A Theory of Justice but includes it in Political Liberalism. Compare Rawls, A Theory of Justice, 53 (listing “freedom of speech and assembly” but not association) with Rawls, Political Liberalism, 291, 335. Kevin Kordana and David Tabachnick have suggested that “the Rawlsian texts appear not to be consistent with regard to the status of the right to freedom of association” and “[t]he status of a right to freedom of association” among the basic liberties is “neither obvious nor uncontroversial.” Kevin A. Kordana and David Blankfein Tabachnick, “The Rawlsian View of Private Ordering,” 25 Social Philosophy and Policy 288, 290 (2008). I am not convinced by this interpretation; Rawls certainly seems to describe something akin to freedom of association in his account of the basic liberties in A Theory of Justice even if he does not name it as such. See Rawls, A Theory of Justice, 195–96 (“There are firm constitutional protections for certain liberties, particularly freedom of speech and assembly, and liberty to form political associations. The principle of loyal opposition is recognized, the clash of political beliefs, and of the interests and attitudes that are likely to influence them, are accepted as a normal condition of human life. . . . Without the conception of loyal opposition, and an attachment to constitutional rules which express and protect it, the politics of democracy cannot be properly conducted or long endure.”); cf. John Rawls, “Constitutional Liberty and the Concept of Justice,” in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), 94 (writing in 1962 that “although tolerant sects have a right not to tolerate an intolerant sect when they sincerely and with reason believe that their own security and that of the institution of liberty is in danger, they have this right only in this case”). And as early as 1975, Rawls noted that a well-ordered society “ensures an equal liberty and freedom of association.” John Rawls, “Fairness to Goodness,” in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999), 275. But this quibble is tangential to my consideration of Rawls’s understanding of association because Kordana and Tabachnick agree that at least some component of the right of association is included among the basic liberties. Kordana and Tabachnick, “The Rawlsian View of Private Ordering,” 290 (freedom of association is a “complex right”).
24. Rawls, Theory of Justice, 140 (to this end, Rawls advocated that a “political conception” of justice could be attained “without reference” to comprehensive doctrines. Ibid., 12. For Rawls, comprehensive doctrines “belong to what we may call the ‘background culture’ of civil society,” which “is the culture of the social, not of the political.” Ibid., 14. Rawls’s distinction between the “social” and the “political” is particularly troubling, as if “the culture of daily life, of its many associations,” could exist in a social realm uninhibited by the legal framework established by the political. Ibid.); John Rawls, “The Idea of Public Reason Revisited,” 64 Chicago Law Review 765 (1997); ibid., 776 (emphasis added). This “proviso” echoes his view in Political Liberalism that citizens can invoke comprehensive doctrines “provided they do this in ways that strengthen the idea of public reason itself.” Rawls, Political Liberalism, 247.
25. Frank Michelman, “Foreword: On Protecting the Poor through the Fourteenth Amendment,” 83 Harvard Law Review 7 (1969) (Laura Kalman writes that by 1973, Michelman was less enamored of Rawlsian solutions. Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 67); Kenneth Karst, “Foreword: Equal Citizenship under the Fourteenth Amendment,” 91 Harvard Law Review 4 (1977); Kalman, The Strange Career of Legal Liberalism, 67.
26. Ronald Dworkin, Freedom’s Law (New York: Oxford University Press, 1996), 17, 25; Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962) (discussing the “counter-majoritarian difficulty”). For purposes of this argument, I am assuming that liberal rights (including the right to group autonomy) are individual rights. An individual’s right to group autonomy is violated if the state imposes unwanted membership requirements upon that person’s group. It may be that some of these arguments can be reached by considering assembly as a “group right.” See, e.g., Frederick Mark Gedicks, “The Recurring Paradox of Groups in the Liberal State,” 2010 Utah Law Review 47 (2010).
27. Roberts v. United States Jaycees, 614; United States Jaycees v. McClure, 709 F.2d 1560, 1563 (8th Cir. 1983); Minn. Stat. § 363.o3(3) (1982). An important fact sometimes lost in the retelling of Roberts is that the litigation reflected an internal debate among the Jaycees— the national organization had sued the local Minnesota chapters. At stake were two competing visions of the future of the organization. It is plausible—perhaps even likely— that the vision favoring the full inclusion of women would have won out absent interference by the courts. In fact, as Judge Arnold pointed out in the lower court opinion, the question about whether to admit women had “been vigorously debated within the organization,” and while the national organization had defeated a resolution favoring the admission of women on three occasions prior to the Roberts litigation, each time a larger minority had voted in favor of the resolution. United States Jaycees v. McClure, 1561.
28. Roberts v. United States Jaycees, 617, 618, 622. Burger and Blackmun recused themselves from the case: Burger had been chapter president of the St. Paul Jaycees, and Blackmun had been a former member of the Minneapolis Jaycees.
29. Roberts v. United States Jaycees, 618.
30. Roberts v. United States Jaycees, 618, 623, 622.
31. Roberts v. United States Jaycees, 623, 626, 627. I am not suggesting that the limitations imposed on associate individual members are insignificant. But the pertinent legal inquiry is whether prohibiting these limitations furthers the compelling interest in eradicating gender discrimination, and it is difficult to see how it does given the opportunities available to women as associate individual members. The right to vote in a Jaycees referendum is not the same as the right to vote in a governmental election. At the very least, the Court failed to show how its remedy of forced inclusion furthered the compelling interest that it identified.
32. Roberts v. United States Jaycees, 631, 633 (O’Connor, J., concurring). For favorable interpretations of O’Connor’s concurrence, see, e.g., Seana Valentine Shiffrin, “What Is Really Wrong with Compelled Association?” 99 Northwestern University Law Review 876 (2005) (“Justice O’Connor’s concurrence in Jaycees was largely correct.”); Douglas O. Linder, “Freedom of Association after Roberts v. United States Jaycees,” 82 Michigan Law Review 1896 (1984) (“On balance, the O’Connor approach seems to enjoy several distinct advantages over the majority approach.”); Eugene Volokh, “Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex,” 1996 University of Chicago Legal Forum 395 (1996).
33. Roberts v. United States Jaycees, 639, 640, 638, 636 (O’Connor, J., concurring).
34. As Larry Alexander notes, “Laws regulating membership in any organization— including commercial ones—will affect the content of that organization’s expression.” Larry Alexander, “What Is Freedom of Association and What Is Its Denial?” 25 Social Philosophy and Policy 7 (2008). One of the clearest illustrations of the consequences of the condition that an association be “predominantly engaged” in protected expression is the effect of charitable solicitation regulation on small or unpopular charities. See, e.g., Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 799 (1988). See also John D. Inazu, “Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law,” 92 Marquette Law Review 551 (2009).
35. On the elevation of intimate over expressive association, see Aviam Soifer, Law and the Company We Keep (Cambridge, Mass.: Harvard University Press, 1995), 41 (contending that Brennan regarded expressive association “as instrumental and therefore subject to greater government intrusion”); George Kateb, “The Value of Association,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 46 (“Running through Brennan’s opinion is the assumption that all nonintimate relationships are simply inferior to intimate ones.”); Koppelman, A Right to Discriminate? x (Under Roberts, “intimate associations of small groups of people had a stronger right [than expressive associations], to refuse association with anyone for any reason.”); David E. Bernstein, “Expressive Association after Dale,” 21 Social Philosophy and Policy 202 (2004) (“The Court’s apparent disdain for expressive association claims had a marked effect on lower courts.”). For examples of the lack of protections for nonexpressive groups, see, e.g., City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989) (applying rational basis scrutiny to city ordinance governing activity that “qualifies neither as a form of ‘intimate association’ nor as a form of ‘expressive association’ as those terms were described in Roberts”); Swank v. Smart, 898 F.2d 1247, 1251–52 (7th Cir. 1990) (First Amendment doesn’t protect nonintimate nonexpressive associations); Conti v. City of Fremont, 919 F.2d 1385, 1388 (9th Cir. 1990) (“an activity receives no special first amendment protection if it qualifies neither as a form of ‘intimate association’ nor as a form of ‘expressive association,’ as those terms were described in Roberts.”).
36. Kenneth L. Karst, “The Freedom of Intimate Association,” 89 Yale Law Journal 629 (1980). The one distinction that may have been plausible when Karst wrote in 1980 is no longer true today. Karst claimed that intimate association “implies an expectation of access of one person to another particular person’s physical presence, some opportunity for face-to-face encounter.” Ibid., 630. While physical presence may have been a distinguishing characteristic of intimate associations thirty years ago, that is no longer true today. Many people now bridge physical separation and connect in emotionally rich ways with friends and family through online social networking sites, blogs, and video conferencing. Others project their identities or create new ones through virtual representations ranging from simple text (like an online profile) to avatars. Some of these online relationships foster deep feelings of intimacy and connectedness. See, e.g., Howard Rheingold, The Virtual Community: Homesteading on the Electronic Frontier, rev. ed. (Cambridge, Mass.: MIT Press, 2000); Jerry Kang, “Cyber-Race,” 113 Harvard Law Review 1130, 1171–72 (2000) (noting that in online forums, “pregnant women share experiences; the elderly console each other after losing love ones, patients fighting cancer provide information and support; disabled children find friends who do not judge them immediately on their disability; users share stories about drug addiction; and gays and lesbians on the brink of coming out give each other emotional shelter.”).
37. Karst, “The Freedom of Intimate Association,” 629, 629 n.26, 632, 634–35, 688.
38. Karst, “The Freedom of Intimate Association,” 633. Cf. ibid., 688–89 (“any constitutional protection of enduring sexual relationships can be effective only if it is extended to the choice to engage in casual ones.”).
39. Karst, “The Freedom of Intimate Association,” 636, 637, 654, 658.
40. Lawrence v. Texas, 539 U.S. 558 (2003); Bowers v. Hardwick, 478 U.S. 186 (1986); ibid., 214 (Stevens, J., dissenting); ibid., 199 (Blackmun, J., dissenting); Lawrence v. Texas, 578 (“Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.”). Karst saw freedom of intimate association on “the cutting edge” of “the current revival of substantive due process.” Karst, “The Freedom of Intimate Association,” 665. In contrast, he believed that “calling the rights in Griswold and Roe rights of privacy invites the rejection of comparable claims on the ground that, after all, they do not rest on any concerns about control over the disclosure of information.” Ibid., 664. On Karst’s interest in gay rights, see, e.g., ibid., 672 (“As I have argued in connection with the prohibition on homosexual conduct, there is no legitimacy in an effort by the state to advance one view of morals by preventing the expression of another view.”); ibid., 682 (“By now it will be obvious that the freedom of intimate association extends to homosexual associations as it does to heterosexual ones.”); ibid., 685 (“The chief importance of the freedom of intimate association as an organizing principle in the area of homosexual relationships is that it lets us see how closely homosexual associations resemble marriage and other heterosexual associations.”). Nancy Marcus has suggested that “principles of intimate association underlie the Lawrence decision” and that “Lawrence is the first actual affirmation of a litigant’s intimate associational rights by the Supreme Court since Roberts.” Nancy Catherine Marcus, “The Freedom of Intimate Association in the Twenty-First Century,” 16 George Mason University Civil Rights and Law Journal 269, 303, 308 (2006). Laura Rosenbury and Jennifer Rothman argue similarly that the majority’s “shift from sex acts to relationships aligns Lawrence with the right to intimate association already articulated by the Court in other contexts.” Laura A. Rosenbury and Jennifer E. Rothman, “Sex in and out of Intimacy,” 59 Emory Law Journal 809, 826 (2010). These claims seem undermined by the lack of any mention of intimate association in the Lawrence opinion, particularly in light of the fact that the justices had before them both Blackmun’s Bowers dissent and arguments about intimate association from the Lawrence Petitioners. See, e.g., Brief of Petitioners John Geddes Lawrence and Tyron Garner (January 16, 2003), at *11, *12, *15 (citing Karst’s article, discussing Roberts’s category of intimate association, and asserting that “the adult couple whose shared life includes sexual intimacy is undoubtedly one of the most important and profound forms of intimate association.”); Reply Brief of Petitioners John Geddes Lawrence and Tyron Garner (March 10, 2003), at *5 (“The relationship of an adult couple—whether heterosexual or gay—united by sexual intimacy is the very paradigm of an intimate association in which one finds ‘emotional enrichment’ and ‘independently. . . . define[s] one’s identity,’ and it is protected as such from ‘unwarranted state interference.’ ” (quoting Roberts)).
41. Roberts v. United States Jaycees, 468 U.S. 609, 618–19 (1984). Although the intellectual debt to Karst is apparent, the similarities between Karst’s article and Brennan’s opinion have gone relatively unnoticed. Among the few articles making the connection are Marcus, “The Freedom of Intimate Association in the Twenty-First Century,” and Collin O’Connor Udell, “Intimate Association: Resurrecting a Hybrid Right,” 7 Texas Journal of Women and the Law 232 (1998) (suggesting that Roberts “lifted the right to intimate association from Karst’s article”). Post-Roberts cases have made clear that most associations are nonintimate, and few courts have extended the category of intimate association beyond family relationships. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (patrons of motel, which limited rental of rooms to ten hours, did not have an intimate relationship protected by the Constitution); City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989) (dance hall patrons “are not engaged in the sort of intimate human relationships” that give rise to the protections of intimate association); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (relationship among Rotary Club members is not the type of intimate relationship that is constitutionally protected); Rode v. Dellarciprete, 845 F.2d 1195, 1205 (3d Cir. 1988) (brother-in-law relationship not protected as intimate association); Pi Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 229 F.3d 435 (3d Cir. 2000) (college fraternity is not an intimate association); Poirier v. Massachusetts Dept. of Correction, 558 F.3d 92, 96 (1st Cir. 2009) (refusing to extend protections of intimate association to “[t]he unmarried cohabitation of adults”); Salvation Army v. Department of Community Affairs of State of N.J., 919 F.2d 183, 198 (3d Cir. 1990) (intimate association unlikely to cover religious groups because “most religious groups do not exhibit the distinctive attributes the Court has identified as helpful in determining whether the freedom of association is implicated.”); Swanson v. City of Bruce, 105 Fed. Appx. 540 (5th Cir. 2004) (“The tight fellowship among police officers, precious though it may be, does not include such deep attachments and commitments of thoughts, experiences, and beliefs or personal aspects of officers’ lives sufficient to constitute an intimate relationship.”); Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 173 (3d Cir. 2008) (“While the Supreme Court has held that the Constitution protects certain relationships, those protected relationships require a closeness that is not present between a high school football coach and his team.”). But see Louisiana Debating and Literary Ass’n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995) (extending right of “private association” to private club); Anderson v. LaVergne, 371 F.3d 879, 882 (6th Cir. 2004) (assuming for summary-judgment purposes that a dating relationship between two police officers qualified as an intimate association because the two were monogamous, had lived together, and were romantically and sexually involved); Akers v. McGinnis, 352 F.3d 1030, 1039–40 (6th Cir. 2003) (concluding that some types of personal friendships may constitute intimate associations).
42. Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (New York: D. Appleton, 1899), 511. Indeed, as Nancy Rosenblum has argued: “The onus for cultivating the moral dispositions of liberal democratic citizens falls heavily on voluntary groups such as the Jaycees and their myriad counterparts.” Nancy Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamic of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 76.
43. Peter L. Berger and Richard John Neuhaus, To Empower People: From State to Civil Society (Washington, D.C.: American Enterprise Institute Press, 1976).
44. Roberts v. United States Jaycees, 619; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”). On the expressive attachments that people form with groups, see Richard W. Garnett, “The Story of Henry Adams’s Soul: Education and the Expression of Associations,” 85 Minnesota Law Review 1851 (2001) (“The simple act of associating can itself be a form of expression. We often join clubs, affiliate with parties, donate to organizations, and even subscribe to magazines, simply to say something.”).
45. The constitutional protections offered by intimate association are today almost completely redundant of those found in the right of privacy. See, e.g., Flaskamp v. Dearborn Public Schools, 385 F.3d 935, 942 (6th Cir. 2004) (“Whether called a right to intimate association or a right to privacy, the point is similar: ‘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 safeguarding the individual freedom that is central to our constitutional scheme.’” (quoting Roberts v. United States Jaycees, 468 U.S. at 617–18 (1984))); Montgomery v. Stefaniak, 410 F.3d 933 (7th Cir. 2005) (“The freedom of intimate association receives protection as a fundamental element of personal liberty, and as such is protected by the due process clauses.” (internal quotations omitted)); City of Bremerton v. Widell, 146 Wash. 2d 561, 51 P.3d 733 (Wash. 2002) (“[Our] cases have held that the right of intimate association stems from the right of privacy, which normally applies only to familial relationships, and extends only as far as the principles of substantive due process permit.” (citations omitted)).
46. Roberts v. United States Jaycees, 618, 622. Lower courts have generally adopted Brennan’s instrumental gloss on expressive association. See, e.g., Salvation Ar my v. Department of Community Affairs of State of N.J., 919 F.2d 183, 199 (3d Cir. 1990) (“The [Supreme] Court has not yet defined the parameters of the right to associate for religious purposes, but it has made it clear that the right to expressive association is a derivative right, which has been implied from the First Amendment in order to assure that those rights expressly secured by that amendment can be meaningfully exercised. Thus, there is no constitutional right to associate for a purpose that is not protected by the First Amendment.” (citations omitted)); Wine and Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 50 (1st Cir. 2005) (“in a free speech case, an association’s expressive purpose may pertain to a wide array of ends (including economic ends), but the embedded associational right protects only collective speech and expressive conduct in pursuit of those ends; it does not cover concerted action that lacks an expressive purpose.”); McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) ( “The right of expressive association . . . is protected by the First Amendment as a necessary corollary of the rights that the amendment protects by its terms. . . . [A] plaintiff . . . can obtain special protection for an asserted associational right if she can demonstrate . . . that the purpose of the association is to engage in activities independently protected by the First Amendment.”); Willis v. Town of Marshall, N.C., 426 F.3d 251, 261 (4th Cir. 2005) (“a constitutionally protected right to associate depends upon the existence of an activity that is itself protected by the First Amendment”); Schultz v. Wilson, 304 Fed. Appx. 116, *3 (3d Cir. 2008) (“A social group is not protected unless it engages in expressive activity such as taking a stance on an issue of public, political, social, or cultural importance.”). But see Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, Tennessee, 274 F.3d 377, 396 (6th Cir. 2001) (First Amendment protects “entertainers and audience members’ right to free expressive association” at an adult establishment because “they are certainly engaged in a ‘collective effort on behalf of shared goals’” and “the dancers and customers work together as speaker and audience to create an erotic, sexually-charged atmosphere, and although society may not find that a particularly worthy goal, it is a shared one nonetheless.”).
47. Roberts v. United States Jaycees, 623. Brennan also emphasized that “there can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.” Ibid. The most commonly asserted elements of the test require that a statute subject to strict scrutiny must be narrowly tailored and use the least restrictive means to further a compelling government interest. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (summarizing strict scrutiny test); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978). For Brennan’s hints toward strict scrutiny, see Roberts v. United States Jaycees, 626 (the state achieved its interest through “the least restrictive means”); ibid., 628 (the “incidental abridgement” of protected speech is “no greater than is necessary.”). The dissenting justices in Dale appear to have equated the Roberts test of “means significantly less restrictive” to strict scrutiny. See Boy Scouts of America v. Dale, 530 U.S. 640, 680 (2000) (Stevens, J., dissenting) (“We also held [in Roberts] that Minnesota’s law is the least restrictive means of achieving [the state’s compelling] interest.”). Justices Souter, Ginsburg, and Breyer joined Justice Stevens’s dissent. Ibid., 663. But in some ways, Dale only adds to the ambiguity of the test the Court applies in freedom of association cases. See ibid., 658–59 (rejecting “the intermediate standard of review enunciated in United States v. O’Brien, 391 U.S. 367 (1968)” but noting that under the proper analysis, “the associational interest in freedom of expression has been set on one side of the scale, and the State’s interest on the other.”). For examples of courts that have construed Roberts as requiring less than strict scrutiny, see, e.g., Tabbaa v. Chertoff, 509 F.3d 89, 105 (2d Cir. 2007) (“Roberts does not require the government to exhaust every possible means of furthering its interest; rather, the government must show only that its interest ‘cannot be achieved through means significantly less restrictive of associational freedoms.’” (quoting Roberts)); Hatcher v. Board of Public Educ. and Orphanage for Bibb County, 809 F.2d 1546, 1559 n.26 (11th Cir. 1987) (“The balancing of interests is necessary because ‘[t]he right to associate for expressive purposes is not . . . absolute.’” (quoting Roberts)); Every Nation Campus Ministries at San Diego State University v. Achtenberg, 597 F.Supp.2d 1075, 1083 (S.D. Cal. 2009) (“state action that burdens a group’s ability to engage in expressive association [need not] always be subject to strict scrutiny, even if the group seeks to engage in expressive association through a limited public forum.” (quoting Truth v. Kent Sch. Dist. 542 F.3d 634, 652 (9th Cir. 2008) (Fisher, J., concurring)); Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 502 F.3d 136, 139 (2d Cir. 2007) (“The mere fact that the associational interest asserted is recognized by the First Amendment does not necessarily mean that a regulation which burdens that interest must satisfy strict scrutiny.”). Cf. Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219, 247 (3d. Cir. 2004) (Aldisert, J., dissenting) reversed by Forum for Academic and Institutional Rights v. Rumsfeld, 547 U.S. 47 (2006) (describing Roberts as having announced a “ ‘balance-of-interests’ test”).
48. For the kind of argument on which these claims are based, see Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe (Oxford: Blackwell, 1968). Justice O’Connor’s concurrence explicitly refers to “nonexpressive association.” See Roberts v. United States Jaycees, 638 (O’Connor, J., concurring) (“this Court’s case law recognizes radically different constitutional protections for expressive and nonexpressive associations”). Richard Epstein argues that the distinction between expressive and nonexpressive association “is indefensible both as a matter of political theory and constitutional law.” Richard A. Epstein, “The Constitutional Perils of Moderation: The Case of the Boy Scouts,” 74 Southern California Law Review 122 (2000).
49. Nancy L. Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamic of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 78; Soifer, Law and the Company We Keep, 40; Kateb, “The Value of Association,” 55; Koppelman, A Right to Discriminate? 24; Jason Mazzone, “Freedom’s Associations,” 77 Washington Law Review 639, 646. See also ibid., 645 (“Expressive association has shifted the focus away from associating and to the more familiar First Amendment territory of speech and the like.”).
50. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987); New York State Club Ass’n v. City of New York, 487 U.S. 1, 13 (1988).
51. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 560, 566, 568, 573, 575 (1995). Evacuation Day commemorated the day that royal troops and loyalists fled the city during the Revolutionary War. Ibid., 560. Until 1992, the city permitted the council to use the city’s official seal, provided printing services to the council, and provided direct funding. Ibid., 561. But GLIB did not contest the lower court’s conclusion that the parade did not constitute state action. Ibid., 566.
52. Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000); New York State Club Ass’n v. City of New York, 13. Boy Scouts of America v. Dale, 655, 650, 651. Justice Stevens challenged Rehnquist’s reasoning: “To prevail on a claim of expressive association in the face of a State’s antidiscrimination law, it is not enough simply to engage in some kind of expressive activity.” Ibid., 682 (Stevens, J. dissenting).
53. Boy Scouts of America v. Dale, 679 (Stevens, J., dissenting). See Epstein, “The Constitutional Perils of Moderation,” 125 (“The Supreme Court’s decision in Dale did not overtly challenge the conceptual framework established in Roberts; indeed, it self-consciously purported to build on it.”); Seana Valentine Shiffrin, “What Is Really Wrong with Compelled Association?” 99 Northwestern University Law Review 839, 841 (2005) (“The Court’s framing of the issues [in Dale] grew straight out of Justice Brennan’s opinion in Roberts v. Jaycees.”); Andrew Koppelman, “Should Noncommercial Associations Have an Absolute Right to Discriminate?” 67 Law and Contemporary Problems 27, 57 (2004) (“Dale is a mess, but the upshot of the mess is that we still have the old message-based rule of Roberts.”). But see Tobias Barrington Wolff and Andrew Koppelman, “Expressive Association and the Ideal of the University in the Solomon Amendment Litigation,” 25 Social Philosophy and Policy 101 (2008) (“The decision in Dale represented an enormous departure from its predecessors,” and “the Court adopted a posture of almost complete deference to an association’s claim that an antidiscrimination law’s interference with decisions about a small number of members would undermine the group’s expressive practice”); Samuel Issacharoff, “Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition,” 101 Columbia Law Review 274, 297–98 (2001) (arguing that Dale eschewed “the functional analysis of Roberts”). In 2006, the Court rejected an attempt to expand the scope of Dale in Forum for Academic and Institutional Rights v. Rumsfeld, 547 U.S. 47 (2006). See generally, Wolff and Koppelman, “Expressive Association and the Ideal of the University in the Solomon Amendment Litigation”; Koppleman, A Right to Discriminate?
54. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136 (2007); Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 443 F.Supp. 2d 374, 376, 377 (2006), reversed by Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136 (2007).
55. Chi Iota (district court), 376, 377, 379, 380. Cf. Healy v. James, 498 U.S. 169, 181 (1972) (“There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges [the right of individuals to associate to further their personal beliefs].”).
56. Chi Iota (district court), 381, 389, 395; Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, 502 F.3d 136, 149 (2007); e-mail from Gregory F. Hauser to John D. Inazu, September 30, 2009 (Mr. Hauser represented Chi Iota in the litigation).
57. Chi Iota (district court), 379 (quoting Chi Iota’s president explaining that the fraternity members “are not extremely religious, but [they] do talk about things that [they] contribute to the community, an expression of Judaism.”); Chi Iota (Second Circuit), 141.
58. Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010); Christian Legal Society v. Martinez, Petition for Writ of Certiorari, May 5, 2009, 6, 7, 8. CLS specifies that “a person’s mere experience of same-sex or opposite-sex sexual attraction does not determine his or her eligibility for leadership or voting membership,” but “CLS individually addresses each situation that arises in a sensitive Biblical fashion.” Ibid., 8.
59. Petition for Writ of Certiorari, 10; Christian Legal Society v. Kane, No. C04–04484, May 19, 2006, *14; Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2978 (2010). Hastings did not deny CLS the “use of campus facilities for meetings and other appropriate purposes,” which the Supreme Court has called “the primary impediment to free association flowing from nonrecognition.” Healy v. James, 408 U.S. 169, 181 (1972). Still, nothing in Healy suggests that the lack of access to campus facilities for meetings is the only burden caused by nonrecognition, and it is not hard to see how the inability to reserve meeting spaces, to access e-mail lists, or to participate in the student fair could burden associational freedoms. See ibid., 181–82 (“Petitioner’s associational interests also were circumscribed by the denial of the use of campus bulletin boards and the school newspaper. If an organization is to remain a viable entity in a campus community in which new students enter on a regular basis, it must possess the means of communicating with these students. Moreover, the organization’s ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by the denial of access to the customary media for communicating with the administration, faculty members, and other students. Such impediments cannot be viewed as insubstantial.”).
60. Kane, *13, *17.
61. Kane, *20, *22, *23. Cf. Christian Legal Society v. Walker, 453 F.3d 853, 862 (7th Cir. 2006) (“It would be hard to argue—and no one does—that CLS is not an expressive association.”).
62. Christian Legal Society v. Kane, 319 Fed. Appx. 645 (9th Cir. 2009). The court cited its opinion in Truth v. Kent Sch. Distr., 542 F.3d 634, 649–50 (9th Cir. 2008), which had ruled that a school district could deny recognition to a high school Bible club that limited its voting members and officers to those who shared the group’s beliefs. The Seventh Circuit’s opinion is Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006).
63. Christian Legal Society v. Martinez, 130 S. Ct. 2971, 2978 (2010). On the tension between public forum analysis and government speech analysis, see, e.g., ibid., 2976 (Hastings’s policy “encourages tolerance, cooperation, and learning among students” and “conveys the Law School’s decision ‘to decline to subsidize with public monies and benefits conduct of which the people of California disapprove.’”). In addition to the doctrinal complications, Martinez involved a disputed factual question as to whether Hastings applied an all-comers policy or a policy that prohibited certain kinds of discrimination, including discrimination based upon religion and sexual orientation. The Court remanded on the question of whether Hastings selectively applied its all-comers policy. Ibid., 2995. While this factual question might be important to a public forum analysis, it is less relevant to the freedom of association analysis that the Court should have made. The strength of CLS’s constitutional claim to exist as a group should not turn on whether the restriction against it is viewpoint neutral or selectively enforced against it.
64. Martinez, 2976. See ibid. (“The same considerations that have led us to apply a less restrictive level of scrutiny to speech in limited public forums as compared to other environments apply with equal force to expressive association occurring in limited public forums.”); ibid. (“The strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums—the State may ‘reserv[e] [them] for certain groups’”). After deciding to pursue a public forum analysis, the viewpoint neutrality of Hastings’s all-comers policy was self-evident to the majority. See ibid., 2993 (“It is, after all, hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers.”); ibid. (“An all-comers condition on access to RSO status, in short, is textbook viewpoint neutral.”). Accordingly, the majority “consider[ed] whether Hastings’ policy is reasonable taking into account the RSO forum’s function and ‘all the surrounding circumstances,’” ibid., 2988, and concluded that “the several justifications Hastings asserts in support of its all-comers requirement are surely reasonable in light of the RSO forum’s purposes.” Ibid., 2991. Ginsburg cited an important article by Eugene Volokh. Ibid., 2985–86 (citing Eugene Volokh, “Freedom of Expressive Association and Government Subsidies,” 58 Stanford Law Review 1919, 1940 (2006)). Among other things, Volokh’s article considers a conflict very similar to the one at issue in Martinez: whether a public university can apply antidiscrimination rules to the Christian Legal Society. Volokh, “Freedom of Expressive Association and Government Subsidies,” 1935. Ginsburg highlights Volokh’s observation that a school may limit official recognition to groups composed only of students, even though this infringes upon the associational freedoms of those who wish to form a group with nonstudents. Martinez, 2986. The point is a nice one, but the nonstudent constraint could also be construed as a jurisdictional limit linked far more closely (and less ideologically) to the nature of the public forum than an all-comers policy. More important, Volokh spends considerable time accounting for the values introduced by the right of association. Volokh, “Freedom of Expressive Association and Government Subsidies,” 1935. The majority subsumes this dimension into its speech analysis.
65. Martinez, 2984–85 (quoting Brief for Petitioner, 35); Brief for Petitioner, 35; ibid., 18; Martinez, 2985 (citing Brief for Petitioner, 18).
66. Martinez, 2986. Ginsburg cites Grove City College v. Bell, 465 U.S. 555, 575–76 (1984), and Bob Jones Univ. v. United States, 461 U.S. 574, 602–4 (1983). “Official recognition” is a term of art that doesn’t entail any endorsement of private groups by the state actor. Hastings made clear that it “neither sponsor[s] nor endorse[s]” the views of registered student organizations and insisted that the groups inform third parties that they were not sponsored by the law school. Brief for Petitioner, 4.
Chapter 5. A Theory of Assembly
1. The pervasive adherence of courts to the expressive and intimate distinction in Roberts illustrates the entrenchment of the right of association. See Michael J. Gerhardt, The Power of Precedent (New York: Oxford University Press, 2008), 100 (discussing the role of “entrenched” judicial decisions that contribute to a “limited path dependency of precedent”).
2. Phillip Bobbitt, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1984); Neil Siegel and Robert D. Cooter, “Collective Action Federalism: A General Theory of Article I, Section 8,” 63 Stanford Law Review 115, 155 (2010).
3. I owe the phrase “factions for the rest of us” to Ernie Young.
4. Peter de Marneffe, “Rights, Reasons, and Freedom of Association,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 146. On the importance of informal relationships, see Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Schuster, 2000), 152–53 (“Social networks are the quintessential resource of movement organizations. Reading groups became sinews of the suffrage movement. Friendship networks, not environmental sympathies, accounted for which Pennsylvanians became involved in grassroots protest after the Three Mile Island nuclear accident. Social ties more than ideals or self-interest explain who was recruited to Freedom Summer, a climactic moment in the civil rights movement. Local church connections account for the solidarity that underlies the Christian Coalition.”).
5. Sheldon Wolin, Politics and Vision (Princeton: Princeton University Press, 2004), 385.
6. Ibid., 524.
7. Ibid., 534, 536, 539, 540, 545, 549.
8. Sheldon S. Wolin, “Democracy, Difference, and Re-Cognition,” 21 Political Theory 464, 467 (1993). Wolin notes the similarities between his thought and some multiculturalist arguments. Ibid., 480.
9. Ibid., 464.
10. Nancy L. Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamic of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 75, 92, 90. Examples of contemporary political theorists who support imposing certain consensus norms on illiberal groups include Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, Mass.: Harvard University Press, 2000); Brian Barry, Culture and Equality (Cambridge, Mass.: Harvard University Press, 2001); Susan Moller Okin, “ ‘Mistresses of Their Own Destiny’: Group Rights, Gender, and Realistic Rights of Exit,” 112 Ethics 205 (2002). Macedo’s arguments are sometimes limited to what he calls “the noncoercive promotion of civic virtue” to further “the constitutional ideals of liberal justice that should unite us all.” Stephen Macedo, “School Vouchers, Religious Nonprofit Organizations, and Liberal Public Values,” 75 Chicago Kent Law Review 417, 418, 423 (2000). He recognizes the value of freedom of association but insists that certain “inward looking” and homogenous groups are “intrinsically problematic in a liberal democratic context” and “the project of promoting a healthy liberal democratic civil society is inevitably a deeply judgmental and non-neutral project.” Stephen Macedo, “The Constitution, Civic Virtue, and Civil Society: Social Capital as Substantive Morality,” 69 Fordham Law Review 1573, 1582, 1593 (2001).
11. Stephen Carter, The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (Cambridge, Mass.: Harvard University Press, 1998), 27; Sheldon S. Wolin, “Fugitive Democracy,” 1 Constellations 11, 23 (1994). Importantly, Wolin emphasizes that this mode of existence is fleeting and “periodically lost.” Ibid. See also Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (New York: Simon and Schuster, 1971).
12. Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton: Princeton University Press, 1998), 54. Cf. John Rawls, “The Idea of Public Reason Revisited,” 64 Chicago Law Review 765, 789 (1997) (“Much the same question arises in regard to all associations, whether they be churches or universities, professional or scientific associations, business firms or labor unions. The family is not peculiar in this respect.”). On the feminist critique of Rawls, see, e.g., Susan Moller Okin, Justice, Gender, and the Family (New York: Basic, 1989). See also Ruth Abbey, “Back Toward a Comprehensive Liberalism? Justice as Fairness, Gender, and Families,” 35 Political Theory 19 (2007) (“In his later writings, Rawls tries to incorporate women as full, free, and equal members of the just society. In doing this, he makes his theory of justice as fairness more palatable to feminist-liberals. However, he also makes it harder to contend that justice as fairness could be a purely political doctrine. Rawls comes very close to advocating autonomy for individuals in the domestic, as well as the political, realm.”).
13. Rawls, “Public Reason Revisited,” 789, 767. Cf. ibid., 789 (“although the principles of justice do not apply directly to the internal life of churches, they do protect the rights and liberties of their members by the constraints to which all churches and associations are subject.”). Cf. Robert C. Post, Constitutional Domains: Democracy, Community, Management (Cambridge, Mass.: Harvard University Press, 1995), 119–78. Post writes: “The boundaries of public discourse cannot be fixed in a neutral fashion. From the perspective of the logic of democratic self-governance, any restriction of the domain of public discourse must necessarily constitute a forcible truncation of possible lines of democratic development. Because this truncation must ultimately be determined by reference to community values, the boundaries of a discourse defined by its liberation from ideological conformity will themselves be defined by reference to ideological presuppositions.” Ibid., 177.
14. Rawls, “Public Reason Revisited,” 800; Chandran Kukathas, The Liberal Archipelago (New York: Oxford University Press, 2003), 138; Robert Cover, “Nomos and Narrative,” 97 Harvard Law Review 1, 17 (1983). Cover specifies that “the term Babel . . . suggests not incoherence but a multiplicity of coherent systems and a problem of intelligibility among communities.” Ibid., 17 n.45.
15. John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1971), 386. As Corey Brettschneider argues, “The test for the reasonableness of comprehensive doctrines is substantive and not merely formal,” and “nonjustifiable principles expressed in the language of public reason are still nonjustifiable.” Corey Brettschneider, “The Politics of the Personal: A Liberal Approach,” 101 American Political Science Review 22 (2007). On the violence of the law, see generally Robert Cover, “Violence and the Word,” 95 Yale Law Journal 1601 (1986). Cover begins his article with the pronouncement that “legal interpretation takes place in a field of pain and death.” Ibid. He later notes that “the violence of judges and officials of a posited constitutional order is generally understood to be implicit in the practice of law and government. Violence is so intrinsic to this activity, so taken for granted, that it need not be mentioned.” Ibid.
16. Wolin, Politics and Vision, 17. See Ken I. Kersch, “‘Guilt By Association’ and the Postwar Civil Libertarians,” 25 Social Philosophy and Policy 55 (2008) (the right of association is “commonly considered as an instrument for vindicating high-status (First Amendment) rights claims, like freedom of religion and freedom of speech, which, as first-order rights, are defended not as instruments indispensable to the exercise of other rights but rather on their own substantive terms”); Martin P. Golding, “Liberty, Equality, and the Freedom of Association,” 13 Australian Journal of Legal Philosophy 120 (1989) (“Particular forms of fellowship communality and cultural identity cannot always be understood merely as goals that individuals coincidentally have; they are modes of existence.”).
17. The claim is intentionally broad—it is difficult to envision any associative act that lacks expressive potential. William Marshall posits a counterexample: “Tom and Fred walking down the street is, in no meaningful sense, expression.” William P. Marshall, “Discrimination and the Right of Association,” 81 Northwestern University Law Review 77 (1986). But as long as Tom and Fred’s stroll reflects a conscious decision to walk with one another, then the act of walking expresses a kind of shared (though perhaps fleeting) affiliation. The meaning of that expression will vary based upon the surrounding circumstances (consider, for example, the expressive meaning if Tom is black and Fred is white and they are walking happily down the main street of a small southern town in the 1950s).
18. Christian Legal Society v. Martinez (No. 08–1371), Brief of Gays and Lesbians for Individual Liberty as Amicus Curiae in Support of Petitioner (February 4, 2010), 11 (emphasizing that “many exclusively gay social and activity clubs, retreats, vacations, and professional organizations” have “relied on exclusively gay environments in which to feel safe, to build relationships, and to develop political strategy.”); Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984). The expressiveness inherent in an act of gathering presupposes an audience of some kind. Thus, for example, the gathering of a secret society would not have an outward expressiveness. Cf. Melville B. Nimmer, “The Meaning of Symbolic Speech under the First Amendment,” 21 UCLA Law Review 29, 36 (1973) (“The right to engage in verbal locutions which no one can hear and in conduct which no one can observe may sometimes qualify as a due process ‘liberty,’ but without an actual or potential audience there can be no first amendment speech right.”). While Nimmer’s observation may be formally correct, it makes little difference in the application of an expressive restriction. Any act of self-expression (i.e., expression undertaken without an actual or potential audience) becomes communicative when the state attempts to restrict it. The very determination by a government actor that an act is not “communicative” or not “protected” is an interpretation of the meaning of the act that creates an audience in the government actor restricting the act.
19. Boy Scouts of America v. Dale, 530 U.S. 640, 702 (2000) (Souter, J., dissenting).
20. Rosenblum, Membership and Morals, 6 (“There are always alternative understandings of an association’s nature and purpose, and competing classifications.”); Erwin Chemerinsky and Catherine Fisk, “The Expressive Interest of Associations,” 9 William and Mary Bill of Rights Journal 600 (2001) (discussing the Court’s deference to the Boy Scouts’ leadership in Boy Scouts of America v. Dale). For examples of groups whose meaning and message are not determined by majority vote, see, e.g., Roberts v. United States Jaycees, 613 (“The ultimate policymaking authority of the Jaycees rests with an annual national convention, consisting of delegates from each local chapter, with a national president and board of directors.”); United States Constitution, Art. 2, sect. 2 (“The President shall be Commander in Chief of the Army and Navy of the United States”).
21. Chemerinsky and Fisk, “The Expressive Interests of Associations,” 608, 609, 611.
22. Andrew Koppelman with Tobias Barrington Wolff, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (New Haven: Yale University Press, 2009), 5, 6, 9–10, 11–12, 12–15, 17–18, 19, 20, iii, xi.
23. Koppelman contends that the new right of association in NAACP v. Alabama was based exclusively on the right to free speech. Ibid., 17. He makes no mention of Justice Harlan’s references to the right of assembly and argues that assembly “has always been understood to mean a right to hold public meetings, not to exclude people from associations.” Ibid., 21. Koppelman and I also disagree as to where in the Constitution the Court rooted the right of association in NAACP v. Alabama. He contends that “NAACP v. Alabama made clear that freedom of association was firmly rooted in the First Amendment.” Koppelman, A Right to Discriminate? 18. I have argued that Harlan’s opinion never mentions the First Amendment and that Harlan, attempting to balance competing pressures from Frankfurter, Black, and Douglas, obscures the constitutional source of the right.
24. Koppelman claims that the Court “summarily rejected” the right to exclude argument in Runyon v. McCrary. Koppelman, A Right to Discriminate? 18. But as I noted earlier, the Court struggled to address this issue in the line of cases preceding Runyon.
25. Koppelman suggests that the doctrinal framework set forth in Roberts was “well-settled” when the Court decided Dale sixteen years later. Koppelman, A Right to Discriminate? xi. As I suggested in the previous chapter, since Roberts, lower courts have been incredibly confused by the Court’s categories of intimate and expressive association.
26. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” (citing De Jonge v. Oregon and Thomas v. Collins)); ibid., 462 (“This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in [Douds]: ‘A requirement that adherents of particular religious faiths or political parties wear identifying armbands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order.”). For other scholars who link the right of association to the right of speech, see, e.g., Michael Stokes Paulsen, “Scouts, Families, and Schools” 85 Minnesota Law Review 1917, 1919 (2001) (“The First Amendment freedom of expressive association . . . is firmly rooted in the Constitution’s text and internal logic. The First Amendment protects ‘the freedom of speech.’”); Richard Epstein explicitly rejects the connection between association and assembly in NAACP v. Alabama. See Richard A. Epstein, “Should Antidiscrimination Laws Limit Freedom of Association? The Dangerous Allure of Human Rights Legislation” 25 Social Philosophy and Policy 131 (2008) (“[ Justice Harlan’s] use of ‘assembly’ . . . leaves the impression that the association right has an explicit textual foundation in the First Amendment. Instructively, the word ‘assembly’ does not appear in the First Amendment, which references only ‘the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ Even if the second clause is not a limitation on the first, the words ‘to assemble’ in context read much more naturally as the ability to meet in public to discuss various issues. ‘To assemble’ does not sound like the right to form associations that meet in private to plan and organize with respect to a full range of ‘political, economic, religious or cultural’ issues.”). These modern interpretations are at odds with those advanced by jurists and scholars at the time the Court first recognized the right of association. See, e.g., Bates v. Little Rock, 361 U.S. 516, 527–28 (1960) (Black and Douglas, JJ., concurring) (“The ordinances as here applied violate freedom of speech and assembly guaranteed by the First Amendment which this Court has many times held was made applicable to the States by the Fourteenth Amendment. . . . One of those rights, freedom of assembly, includes of course freedom of association; and it is entitled to no less protection than any other First Amendment right.”); Glenn Abernathy, The Right of Assembly and Association (Columbia: University of South Carolina Press, 1961), 4, 173, 236–37 (arguing that the right of association falls within an “expanded meaning” of the right of assembly, that association was “clearly a right cognate to the right of assembly,” and that the right of assembly “can justifiably be extended to include as well those persons who are joined together through organizational affiliation.”); George P. Smith, “The Development of the Right of Assembly: A Current Socio-Legal Investigation,” 9 William and Mary Law Review 366 (1967) (“the broad concept of a right of association . . . developed largely out of the right of assembly and in part out of due process concepts.”); David Fellman, The Constitutional Right of Association (Chicago: University of Chicago Press, 1963), 3 (“The broader rights of association have developed, in part, out of the right of assembly, and in part out of broader due process concepts.”).
27. United States Constitution, Amendment I; Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”). On the history of unlawful assembly, see Abernathy, The Right of Assembly and Association, 19–49. Abernathy catalogues much of the legal commentary on unlawful assembly from the nineteenth and early twentieth centuries, as well as antecedents from English statutes and commentary. Ibid. For a more recent example of state restrictions on a nonpeaceable group, see Gallo v. Acuna, 14 Cal.4th 1090, 929 P.2d 596 (Cal. 1997) (enforcing associational restrictions against criminal street gang).
28. See, e.g., Robert Post, “Prejudicial Appearances: The Logic of American Antidiscrimination Law,” 88 California Law Review 1 (2000); Jordan D. Bello, “Attractiveness as Hiring Criteria: Savvy Business Practice or Racial Discrimination?” 8 Journal of Gender, Race, and Justice 483 (2004). Commercial discrimination against customers also exists. See, e.g., Miriam A. Cherry, “Exercising the Right to Public Accommodations: The Debate over Single-Sex Health Clubs,” 52 Maine Law Review 97 (2000); Michael R. Evans, “The Case for All-Female Health Clubs: Creating a Compensatory Purpose Exception to State Public Accommodation Laws,” 11 Yale Journal of Law and Feminism 307 (1999). Discriminatory online dating services raise a related concern. Commercial online dating services regularly engage in de facto discrimination based on more suspect characteristics, even if they remain technically open to all customers. See, e.g., jdate.com (“the Premier Jewish Community Online for Dating Jewish Singles”) (last visited July 7, 2010); adamforadam.com (“we build a community for gay men looking for friendship, romance, dating or a hot hookup”) (last visited July 7, 2010); blackpeoplemeet.com (the “fast and easy way to connect with black singles near you”) (last visited July 7, 2010).
29. Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” 90 Northwestern University Law Review 1283 (1996) (arguing that historical understanding of public accommodation includes not only inns, restaurants, gas stations, and places of entertainment but also retail stores); Roberts v. United States Jaycees, 626; Boy Scouts of America v. Dale, 530 U.S. 640, 657 (2000). Jonathan Mitchell notes that “as a matter of state law this holding was a reach, even in light of the state legislature’s instructions to ‘liberally [construe]’ the antidiscrimination laws.” Jonathan F. Mitchell, “Reconsidering Murdock: State-Law Reversals as Constitutional Avoidance,” 77 Chicago Law Review 1365 (2010). See ibid. (“The state supreme court essentially equated membership associations with ‘places of public accommodation’; that conclusion does not fit the statutory language. New Jersey’s [antidiscrimination law] also prohibits places of public accommodation from discriminating based on ‘creed,’ ‘age,’ ‘sex,’ and ‘gender identity or expression.’ Classifying the Boy Scouts as a ‘place of public accommodation’ would prohibit the Scouts from setting minimum ages for Scoutmasters, requiring its members to believe in God, or excluding women or girls from membership or any leadership position. The state supreme court never addressed these implications of its ruling.”). The ways in which a line between commercial and noncommercial extends the reach of anti- discrimination norms into commercial but noncoercive groups is rarely addressed in contemporary scholarship on matters of group autonomy.
30. Roberts v. United States Jaycees, 636 (O’Connor, J., concurring) (positing a dichotomous distinction between “commercial” and “expressive” associations and noting that “an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association’s activities are not predominantly of the type protected by the First Amendment.”); Brief for Petitioner, 2, Christian Legal Society v. Martinez, No. 08–1371 ( Jan. 2010).
31. Koppelman, A Right to Discriminate? xii, 74. For an approach similar to the contextual analysis that I suggest, see Robert K. Vischer, “The Good, the Bad, and the Ugly: Rethinking the Value of Associations,” 79 Notre Dame L. Rev. 949, 973 (2004) (“Judicial deference to an association’s expression of identity does not preclude the application of antidiscrimination statutes to all associations. Where the association excludes certain segments of society from economic or political participation in the community, the statute may still be enforceable.”).
32. Koppelman, A Right to Discriminate? xi, xii, xiii.
33. Koppelman, A Right to Discriminate? 20. The district court assumed that CLS qualified as an expressive association because Hastings did not dispute that characterization. Christian Legal Society v. Kane, No. C04–04484 (May 19, 2006), at *20.
34. Koppelman, A Right to Discriminate? 24.
35. Andrew Koppelman, “Should Noncommercial Associations Have an Absolute Right to Discriminate?” 67 Law and Contemporary Problems 57 (2004). See Bob Jones v. United States, 461 U.S. 574 (1983) (upholding denial of tax-exempt status to private university and private secondary schools that discriminated on the basis of race); Grove City College v. Bell, 465 U.S. 555, 559 (1984) (noting that Title IX’s restrictions on gender discrimination trumped the petitioners’ First Amendment rights because “Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that education institutions are not obligated to accept.”). Despite the Court’s denial of government benefits in Bob Jones and Grove City, the constitutional distinction between the financial benefits in these cases and the subsidies in official recognition cases like Martinez is far from clear. On the one hand, the Court has equated the grant of tax-exempt status with a government subsidy. See Regan v. Taxation with Representation 461 U.S. 540 (1983) (“A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income.”); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 14 (1989) (“every tax exemption constitutes a subsidy that affects non-qualifying taxpayers, forcing them to become indirect and vicarious ‘donors.’”). On the other hand, the Court has specified that the “grant of a tax exemption is not sponsorship.” Walz v. Tax Commission, 397 U.S. 664, 675 (1970).
36. Koppelman, A Right to Discriminate? 118–19. Of all of the litigants to bring cases about group autonomy to the Supreme Court in the past thirty years, the most striking victory was won by the Boy Scouts. And yet the Scouts are arguably the litigants least worthy of the constitutional protections of assembly. As Koppelman has noted, the Scouts are “deeply intertwined with the state, to a degree unmatched by any other youth organization.” Andrew Koppelman, “Should Noncommercial Associations Have an Absolute Right to Discriminate?” 47. See ibid., 47–48 (listing examples of the Boy Scouts’ governmental support, including a congressional charter, the president of the United States serving as the organization’s honorary president, the use of military equipment without charge, and the use of military facilities). Koppelman also notes that “athough the Boy Scouts are not an actual monopoly, they have enormous market power.” Ibid., 49. See ibid. (“Membership in the Boy Scouts has a nationally understood meaning. If you tell someone you are an Eagle Scout, no further explanation is necessary. No other youth organization has such universal recognition of such enormous cultural resonance.”).
37. Amy Gutmann, “Freedom of Association: An Introductory Essay,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 13. The underlying facts and circumstances in the contextual analysis that I propose become more difficult to sort out with groups that maintain both local and larger regional or national identities. Consider the Boy Scouts: Should the focus of the overreaching of private power be at the local or the national level? I find this to be a deeply complicated question, made even more problematic by the quasi-public nature of the Boy Scouts at the federal level. In some ways, the kind of power exerted by the Boy Scouts has been made possible by its national identity. On the other hand, the effects of this power will vary by locality, and local Scout troops might reflect the core understanding of assembly that I have articulated in this book. As Laura Rosenbury has argued: “If one considers the individual groups in which the Boy Scouts functions—the troops and dens, consisting of anywhere from eight to twenty boys—then the Boy Scouts organization shares at least four characteristics of many families. First, like families, the troops are relatively small groups. Second, minors are the focus of both groups. Third, the Boy Scouts seeks to instill values in young people, a primary family function. Fourth, both the Boy Scouts and families allegedly seek to instill values about gender and sex, aspects of identity that are foundational to state definitions of marriage and the family. When one considers all four characteristics together—when the Boy Scouts is seen as a series of small groups made up of children and mentors performing a function traditionally performed by the family about subjects that are at the core of state definitions of family—it is plausible to conclude that the Boy Scouts constitutes a family-like intimate association.” Laura A. Rosenbury, “Between Home and School,” 155 University of Pennsylvania Law Review 833, 861–62 (2007). Rosenbury nevertheless calls for “limited inclusion-oriented, or pluralism-enhancing, regulations.” Ibid., 895. In the context of Boy Scouts of America v. Dale, “this normative approach would mean that the Boy Scouts would not be permitted to exclude Dale as a troop leader, because the state of New Jersey has decided, in passing its public accommodations law, that discrimination against homosexuals in spaces like the Boy Scouts is at odds with the state’s conception of civil society.” Ibid.
38. Thomas v. Collins, 323 U.S. 516 (1945); Aviam Soifer, Law and the Company We Keep (Cambridge, Mass.: Harvard University Press, 1995), 77, 78. I have otherwise written this dissent to reflect the context in 1984 and have avoided citing events, case law, and scholarship that unfolded after that time.
1. Cf. Tabatha Abu El-Haj, “The Neglected Right of Assembly,” 56 UCLA Law Review 543, 588 (2009). (“We seem to have forgotten that the right of assembly, like the right to petition, was originally considered central to securing democratic responsiveness and active democratic citizens. We now view it instead as simply another facet of the individual’s right of free expression, focusing almost exclusively on the question of whether the group’s message will be heard.”); Timothy Zick, Speech out of Doors: Preserving First Amendment Liberties in Public Places (New York: Cambridge University Press, 2008), 325 (“Our long tradition of public expression, dissent, and contention, from the earliest activities in the colonies to present-day peace activists, agitators, and dissenters, has been possible owing to relatively open access to embodied, contested, inscribed, and other places on the expressive topography.”).
2. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 137 (1961) (Black, J., dissenting).
3. C. Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989), 134 (original emphasis).