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Written by Robert D. Richards, published on July 17, 2023 , last updated on January 15, 2024

Freedom of Assembly and Association

The First Amendment guarantees “the right of the people peaceably to assemble.” The notion that the act of gathering is pivotal to a functioning democracy relates to the belief that individuals espousing ideas will tend to coalesce around their commonalities. As a result, a correlative right of association — though not enumerated in the First Amendment —  evolved from the right of assembly and continues to be recognized in a growing body of case law. It also can be viewed more broadly as a corollary to the right of speech because people often bond together in speech-related activities.

Court upholds right of assembly in 1930s case

In the 1930s, the Supreme Court weighed in on the right of assembly, recognizing that the right to gather collectively as one voice advanced benefits warranting constitutional protection. In De Jonge v. Oregon (1937), the court made clear that “[t]he right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”

In the case before the court, Dirk De Jonge had been charged under an Oregon criminal syndicalism statute because he had “assisted in the conduct of a meeting which was called under the auspices of the Communist Party, an organization advocating criminal syndicalism.” During his speech at the gathering, De Jonge “protested against conditions in the county jail, the action of city police in relation to the maritime strike then in progress in Portland and numerous other matters.”

In his defense, De Jonge stated that the meeting was held in public, it was orderly, and no “unlawful conduct was taught or advocated at the meeting” by him or anyone else. In fact, the court unfavorably noted that under the Oregon statute, essentially anyone who joined in the assembly — even for purely lawful purposes — could be charged. Also, as the court observed, the Oregon law “might be indefinitely extended to every variety of meetings under the auspices of the Communist Party although held for the discussion of political issues or to adopt protests and pass resolutions of an entirely innocent and proper character.”

Discourse would clearly suffer if individuals feared prosecution for merely joining in a discussion with an unpopular group without any attempt to further illegal action. As the court concluded, “the right [of assembly] 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.”

In short, the court shored up the protection that the Constitution provides to those individuals and groups that espouse views repugnant to a democratic society.

Right of association stemmed from right of assembly

If principles of association are embedded in the right of assembly, should there also be a right for a group to exclude from membership those individuals that do not fit the group’s desired mission or profile?

The Supreme Court began looking at this issue in 1984, when it examined whether the Jaycees, a group that admitted as “regular members” only men between the ages of 18 and 35, violated Minnesota’s Human Rights Act, which prohibits discrimination on the basis of gender and race. Two local chapters of the Jaycees claimed that the national organization’s bylaws illegally discriminated against women. The national organization argued that its right of association would be violated if forced to admit women.

Justice William J. Brennan Jr., writing for the court in Roberts v. United States Jaycees (1984), found that the court had traditionally viewed freedom of association in two distinct ways. In one respect, individuals who choose “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.” This type of association recognizes that “certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.” Examples include rights attendant to marriage and procreation.

Association rights exist for First Amendment-protected activity

Under these circumstances, association is a “fundamental element of personal liberty.” In another respect, associational rights should be viewed as existing for “the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for redress of grievances, and the exercise of religion.” In this instance, association is “an indispensable means of preserving other liberties.” Of significance, the scope of protection for association may vary depending upon which associational interests are at stake.

The court rejected intimate association as the applicable principle in Roberts because the chapters of the Jaycees were “large and basically unselective groups.” In fact, the group routinely admitted anyone who met the age and gender requirements. The court’s analysis turned consequently to whether the Minnesota act interfered with the Jaycees’ expressive association rights, which enable activities protected by the First Amendment.

In this regard, Brennan wrote, the court has “long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This type of association requires a balancing to determine whether the government has a compelling interest, unrelated to the suppression of ideas, that would justify an incursion. In this instance, the court was persuaded that Minnesota’s interest in eliminating gender discrimination was sufficient to justify “the impact that application of the statute to the Jaycees may have on the male members’ associational freedoms.”

Discrimination claims do not always trump associational rights

Despite the court’s ruling in Roberts and other similar cases, claims of discrimination do not always trump associational rights. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), the court issued a ruling for a situation in which the message of one group conflicted with that of the other.

In this case, pursuant to a grant of authority by the city of Boston, the South Boston Allied War Veterans Council, a private group, had been allowed to sponsor and organize the annual St. Patrick’s Day–Evacuation Day parade. Another group, comprised of gay, lesbian, and bisexual descendants of Irish immigrants, sought to march in the parade under a banner identifying its members as such and expressing pride and solidarity with similar marchers in New York’s parade. The parade’s sponsor denied the group’s application to participate, and the group filed suit, alleging violations of the state and federal constitutions and Massachusetts’s public accommodations law prohibiting discrimination at public events.

The Supreme Court was not sympathetic to the gay organization’s contention that Massachusetts law required the parade’s sponsor to include the group despite its lack of affinity with the message, observing, “It boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.”

In support of its ruling, the court observed, “[p]arades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches.” Parsed differently, here the parade sponsor’s right of expressive association was paramount. According to the court, the Commonwealth of Massachusetts should not interfere to require the sponsor to associate with a view to which it did not subscribe.

Court: Boy Scouts' associational rights justify excluding gay assistant scoutmaster

In another case involving the association rights of a private organization and a gay member, the Supreme Court similarly ruled that the Boy Scouts of America had the right to exclude a gay assistant scoutmaster. The Boy Scouts had revoked the membership of James Dale, an Eagle scout, after they discovered that he was homosexual and an activist for gay causes. The Scouts organization maintained “that homosexual conduct is inconsistent with the values it seeks to instill.” Dale sued, using New Jersey’s public accommodation law.

In Boy Scouts of America v. Dale (2000), the court did not agree with Dale’s argument that not all members of the Boy Scout’s organization supported its anti-gay stance, finding instead that “[t]he Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes.”

The court further found that the Boy Scouts were an expressive association and that “the forced inclusion of Dale would significantly affect its expression.” Organizations are entitled to develop their own messages. As the court concluded, “We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization’s expression does not justify the State’s effort to compel the organization to accept members where such acceptance would derogate from the organization’s expressive message.”

More recently, the court rejected an argument by colleges and universities that their rights of expressive association were violated by the Solomon Amendment, a congressional statute forcing them either to allow military recruiters on campus or relinquish federal funding. In Rumsfeld v. Forum for Academic and Institutional Rights (2006), the court dismissed the notion that because the military excludes known homosexuals from its ranks, requiring a school to grant them access to campus for recruiting is tantamount to forcing the educational institutions to endorse a discriminatory message. To the contrary, the court reasoned that “[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.”

The educational institutions relied heavily upon the earlier opinion in Dale, but the court saw the issue differently because the military was not part of the schools; thus its presence on campus did not affect the schools’ message. By contrast, in Dale, the assistant scoutmaster was an intricate part of the organization. As the court in Rumsfeld noted, “Students and faculty are free to associate to voice their disapproval of the military’s message; nothing about the statute affects the composition of the group by making group membership less desirable.”

Although it may be impractical for the educational institutions above to deny access to military recruiters and thus forfeit all federal funding, that choice remains. Yet, at times, individuals cannot separate themselves from a group’s message. Moreover, in some instances, the court has upheld the group’s ability to require individuals to help finance a message despite their objection to it.

Do fees funding political speech violate association rights?

In Board of Regents of the University of Wisconsin System v. Southworth (2000), a group of students at the University of Wisconsin challenged, on First Amendment grounds, the institution’s mandatory student activity fee, claiming that the funds were “used in part by the University to support student organizations engaging in political or ideological speech.”

The students objected to being compelled to associate, through the fees they paid, with the expression of certain student organizations with which they disagreed. The court found the purpose of the fee to be noble. “The University of Wisconsin exacts the fee at issue for the sole purpose of facilitating the free and open exchange of ideas by, and among, its students,” Justice Anthony M. Kennedy wrote. The distribution of fees took place by direct application or student referendum. If the objecting students are entitled, as the court suggests, “to insist upon certain safeguards with respect to the expressive activities which they are required to support,” what workable protections must the university put it place?

The court answered this query by finding “the proper measure, and the principal standard of protection for objecting students . . . is the requirement of viewpoint neutrality in the allocation of funding support.” Although finding that the university’s direct application program satisfied viewpoint neutrality, the court was less sanguine with the student referendum process, which was incumbent upon a majority vote. As the court reasoned, “[t]he whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.”

Southworth is distinguishable from earlier precedents in which an objecting individual could not be forced to fund political views of the entire group. Two cases in particular have shaped the law’s direction in this area: Abood v. Detroit Board of Education (1977) and Keller v. State Bar of California (1990).

In Abood, nonunion public school teachers objected, on association grounds, to a collective bargaining agreement that required them to pay a “service fee” equal to the dues union members paid. The court ruled that to the extent that the funds were used to support political candidates or express political views, teachers could prevent the expenditure of a part of their service fees.

In Keller, the court ruled similarly in that although required payment of dues to practice law was permissible, lawyers could not be forced to fund the bar association’s political messages.

The right of assembly has largely gone unexamined by the U.S. Supreme Court for decades, despite high-profile and widespread protests and the growing militarization of local police forces tasked with monitoring those protests. In 2020, constitutional law attorney Kia Rahnama wrote that the Supreme Court was failing to do its duty.

For decades, lower-level courts ignored requests to apply the chilling-effect doctrine to harsh crowd-control tactics, finding the advocates’ plea that such practices can impact future participation in protests to be tenuous, Rahnama wrote in Politico. “The courts’ failure to update Americans’ understanding of the freedom of assembly has given law enforcement free rein to deploy strategies that increasingly have the potential to deter future participation in protests.”

This article was originally written by Robert D. Richards and published in 2009. It was updated in 2023.

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