The Implied Right of Association in the US

Ashutosh Bhagwat

University of California & Davis School of Law

The Freedom of Association is widely considered a fundamental political right, central to enabling political participation in democratically organized societies. Indeed, association is considered so important around the world that according to the Constitute Project, an online collection of world constitutions, fully 181 of the 193 constitutions currently in force in the world protect a right of association. Strikingly, however, the constitutional text of one prominent democratic nation does not provide an express right to freedom of association:  the United States. In this post I will briefly discuss why that is so, how the United States ultimately came to recognize a right of association despite a lack of support in the constitutional text, and some consequences of the fact that the US right to freedom of association is implied rather than textual.

The logical place where one might expect to find a right of association is in the First Amendment to the US Constitution, which does protect the related political rights to freedom of speech, freedom of the press, peaceable assembly, and the right to petition the Government for a redress of grievances. The omission of an association right is almost certainly a product of the fact that the US Constitution is over 200 years old. The First Amendment, in particular, was written in 1789 and came into effect when ratified on December 15, 1791. At that early date, long predating any other current, written national constitution, the precise nature, role, and importance of constitutional rights, especially political rights, was not well understood—indeed, the original text of the US Constitution did not even include a Bill of Rights, for precisely that reason.

Despite this lack of textual support, however, throughout the subsequent history of the United States there was spirited debate, in both political and judicial discourse, regarding the existence and nature of a right of association. Whilst during the early republic the existence of an association right was controversial, by the early twentieth century it was widely accepted that the First Amendment did protect such a right. And notably, there was also wide agreement that the textual source of that right was the Assembly Clause of the First Amendment, which was understood to protect both temporary physical gatherings, and the kinds of permanent groups of citizens that have come to be known as associations.

Throughout this period, however, no US Supreme Court decision formally recognized a right of association, even if courts implicitly assumed that it existed. The right to association finally gained formal, legal recognition only in 1958, during the height of the civil rights movement in support of the political and constitutional rights of Black Americans. The case of NAACP v. Alabama ex rel. Patterson arose in response to efforts by the State of Alabama to disband the Alabama chapter of the National Association for the Advancement of Colored People (NAACP), the premier civil rights organization defending the rights of Black Americans. The US Supreme Court held in that case that because “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” the First Amendment should be read to protect an implied right to form and maintain political associations. Thus was the US right to freedom of association born.

Since 1958, the US Supreme Court has consistently protected various aspects of the right of association. Thus, in 1960 it invalidated a state law that conditioned employment as a teacher on candidates filing an affidavit listing all the organizations in which they were members. In 1972 it reversed a decision by officials at a state college to deny official recognition to a radical student group (Students for a Democratic Society). In 2021 it created a right to anonymous association, as a result of which most laws requiring disclosure of membership in or financial donations to civic organizations became presumptively unconstitutional. Most strikingly, in 2000 the Supreme Court held that the Boy Scouts of America, an organization dedicated to instilling moral values in boys, had a First Amendment right under the freedom of association to terminate the membership, in violation of state antidiscrimination laws, of a gay assistant scout master.

In short, despite the fact that the word “association” does not appear in the text of the US Constitution, the US Supreme Court has since 1958 come to protect a robust constitutional right to form associations with other citizens, choose who may or may not become members of those groups, and maintain confidentiality about membership in groups. Indeed, in many respects the US freedom of association is more robust than in jurisdictions with textual rights to association.

But in one respect, the freedom of association in the US is arguably narrower than the association rights recognized in other democracies. Rather than protecting a general right to form groups, the US right, as defined by the Supreme Court, is limited to “expressive association,” meaning that the right is limited to groups that engage in public advocacy. Thus, in the Boy Scouts case, the Court upheld the right of the Boy Scouts to exclude a gay assistant scoutmaster not based on a general right to choose who one wishes to associate with, but because the Court accepted the Scouts’ argument that retaining a gay scoutmaster in their organization would interfere with the Scouts’ ability to publicly disseminate a message of hostility to homosexuality. Indeed, in a previous case the Court had rejected a First Amendment claim by a civic organization, the U.S. Jaycees, to deny women full membership, on the grounds that the inclusion of women would not interfere with the Jaycees’ ability to spread their preferred message.

However one feels about the results in the Boy Scouts and U.S. Jaycees cases, their reasoning has an important implication. It suggests that the US right of association would not extend to non-expressive, inward-looking organizations whose goal is to foster intragroup relationships rather than public advocacy. Moreover, this limitation is a direct consequence of the odd provenance of the US right. Because the word “association” does not appear in the First Amendment, beginning with the 1958 NAACP case the US Supreme Court has treated the right as derivative of and in service to the right to free speech, rather than a stand-alone right. But if association is valued only insofar as it advances free speech, then logically only speech-focused (i.e., “expressive”) associations merit protection. Of course, because most political and social organizations do engage in expressive activity, the US association right remains expansive. But the limitation to expressive associations is nonetheless an odd, and historically unjustified truncation of the association right, which would never have occurred if the modern Supreme Court had not forgotten the link between association and the Assembly Clause of the First Amendment.

Ashutosh Bhagwat is a Distinguished Professor of Law and the Boochever and Bird Endowed Chair at the University of California, Davis School of Law

Suggested Citation: Ashutosh Bhagwat, ‘The Implied Right of Association in the US’ IACL-AIDC Blog (15 October 2024) The Implied Right of Association in the US — IACL-IADC Blog (blog-iacl-aidc.org)